Prosecutors Dodge Double Jeopardy, Collateral Estoppel

In the late afternoon hours of August 1, 2015, Christopher Rion was driving his Dodge Challenger in Dallas, Texas, when he collided with a Toyota Highlander. The collision left the Highlander driver, Claudia Loehr, and a passenger, Claudena Parnell, seriously injured. Parnell succumbed to her injuries several days later.

 

A Dallas County grand jury indicted Rion for manslaughter related to Parnell’s death and aggravated assault with a deadly weapon for Loehr’s injuries. Rion’s defense team sought a single trial on both offenses, but the trial court denied the single-trial motion after the prosecution’s formal opposition.

 

Rion was tried first on the manslaughter charge. His defense at trial was that he suffered from severe mental health issues for which he had been prescribed the drugs Adderall, Ambien, Lexapro, and Valium. He had taken prescribed dosages of Adderall and Valium earlier in the day of the collision. No doctor had ever instructed him not to drive while medicated.

 

The prosecution presented a case that Rion was reckless in driving under the influence, and it was that criminal recklessness that caused the death of Parnell. The state’s case rested exclusively on the legal premise that voluntary intoxication is not a defense against the recklessness element of a manslaughter charge.

 

Not Guilty Verdict Prompts Prosecutor to Try Second Case

 

The trial court gave the jury an instruction charge that included both manslaughter and the lesser included offense of negligent homicide.

 

The jury acquitted Rion on both charges.

 

The prosecution of this case, we believe, should have ended at that point. But that is not what happened.

 

The prosecution sought to try Rion on the aggravated assault with a deadly weapon charge. Rion’s defense team sought to prevent this prosecution through Texas’ Collateral Estoppel Doctrine by filing a pretrial writ of habeas corpus. The defense argued that since the jury rejected the manslaughter case based on the issue of recklessness, the prosecution was collaterally estopped from using recklessness to try Rion on the assault charge because that charge also has a recklessness element.

 

The Texas Fifth District Court of Appeals agreed.

 

The prosecution sought and secured, discretionary review before the Texas Court of Criminal Appeals (CCA) on the issue of whether the appeals court was correct in its finding. The CCA opened its analysis with an explanation of the collateral estoppel doctrine:

 

“Embodied in the Fifth Amendment’s guarantee against double jeopardy, the doctrine of collateral estoppel is an ‘extremely important principle in our adversary system’ and ‘means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties’... Confronted with the issue of whether collateral estoppel applies to bar a subsequent trial, courts must determine: (1) what facts were necessarily decided in the first proceeding; and (2) whether those necessarily-decided facts constitute essential elements of the offense in the second trial.”

 

Legal Distinction Causes Logical Inconsistency

 

The CCA reversed the appeals court on October 27, 2021, finding there is a legal distinction between recklessness causing death and recklessness causing injury. The CCA explained the difference this way:

 

“... through its ‘not guilty’ verdict, the jury in the manslaughter trial indicated that it had reasonable doubt that Appellant was reckless. As defined, correctly, by the charge, the jury’s determination on recklessness meant that it had reasonable doubt that Appellant was aware of a risk that death would occur as result of his conduct. In the aggravated assault case, while the jury would be similarly asked to decide whether Appellant was reckless, that is a different question for the purposes of aggravated assault causing bodily injury. The jury in the second trial would be asked to find, beyond a reasonable doubt, that Appellant was aware of a substantial and unjustifiable risk that bodily injury would occur as result of his conduct. The recklessness issues are not precisely the same. “

 

The CCA, however, left the collateral estoppel door open in other cases with this statutory caveat:

 

“But this is not to say that collateral estoppel can never apply where one trial is for manslaughter and the other trial is for reckless aggravated assault causing bodily injury. Because death itself is a form of bodily injury, a jury determination on recklessness with respect to awareness of a risk of death could say something about whether the defendant was aware of a risk of bodily injury, and a jury determination on recklessness with respect to awareness of a risk of bodily injury could say something about whether the defendant was aware of a risk of death.

 

“What if Appellant’s trials were reversed, and the reckless aggravated assault causing bodily injury case was tried first? If the jury decided that Appellant was not reckless, that is, he was not aware of but consciously disregarded a risk that his conduct would cause bodily injury to another, that would also be a determination that he was not aware of but consciously disregarded a risk that his conduct would cause the death of another. If a person is not aware that he could injure someone by his conduct, he inherently must be not aware that his conduct could also cause death to someone—death being the ultimate form of bodily injury.”

 

The CCA found within this legal analysis resided the distinction between two standards of recklessness. In other words, the prosecution can get the first bite of the apple if it prosecutes the manslaughter offense first and gets a second bite with an aggravated assault offense if the manslaughter jury acquits. The distinction made by the CCA strains logic, but that’s the current state of the law.

 

The issue remains open as to what an aggravated assault jury will decide based on the same facts and circumstances presented in the manslaughter trial. 

 

 

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Can You Run a Business from Home in Texas?

There are many benefits to running a business from home. Think about it. Starting a business out of your home will immediately cut down on your start-up costs. Office space can be expensive and working from home can be a great way to save. Plus, you get to work from the comfort of your own home! Think of the flexibility, not to mention the general creature comforts you can enjoy as well. If you have considered the benefits of working from home, you are likely wondering whether you are even allowed to run a business from home in Texas. We are here to answer this question for you.

Can You Run a Business from Home in Texas?

At the state level, there is no specific ban on running a business from home in Texas. It is, however, very important to check your local zoning laws to verify whether you are permitted from running a business from your home. The good news is that, most of the time, you can operate a business out of your home. The caveat being that your business activities cannot have adverse impacts on your neighbors. If that is the case or becomes the case, you may be prevented from continuing to run your home-based business pursuant to local zoning laws. To check to see if there are any specific types of business activities that are prohibited in your area, go to the city or county clerk’s office to check local ordinances.

Once you have verified that it is okay to run your business out of your home, it is time to set up your business. You will need to choose your business name and register that name with Texas. Many home-based businesses, however, are established and operated as sole proprietorships. This makes for an easy setup as there is no particular paperwork that must be filed. While there is ease in establishing a sole proprietorship, however, you also have personal liability exposure for business losses as you and the business are considered to be one and the same.

You will also need to obtain any necessary state licenses and local permits required of your business. There is no general requirement in Texas to obtain a business license. Certain regulatory agencies may, however, require certain licenses and permits for your business depending on your business type as well as what products or services your business intends to sell. There may also be county and city permits you need to obtain to run your home-based business. An occupational permit may be required. In fact, the Governor’s office makes it clear that it advises all Texas businesses to get in touch with local city and county governments to see if there are any other specific requirements that must be met to legitimately establish a home-based business, or any other type of business, for that matter.

In addition to all of this, you must be mindful of things that all business owners need to be aware. For instance, learn about the tax responsibilities you will have as a business owner. Develop a marketing plan, and much more. A marketing plan can be even more important for home-based businesses. The fact that businesses run out of the home lack a store front and, thus, lack this visibility, can mean that marketing efforts must be that much more robust.

Business Law Attorney

Are you planning to set up a business run out of your home? Let the Kumar Law Firm help set you up for success. Contact us today.

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Fraudulent Inducement as a Defense in Texas

Fraudulent inducement may provide a defense to a breach of contract lawsuit in Texas.  Fraudulent inducement is a “species of common-law fraud” that “arises only in the context of a contract.”  The defense exists when a party lies or misrepresents an important term of the contract and thereby induces the other party to enter into the contract.

The Texas Supreme Court recognized in Formosa Plastics that “Texas law has long imposed a duty to abstain from inducing another to enter into a contract through the use of fraudulent misrepresentations.”  Of course, the defense of fraudulent inducement only exists where the defendant was actually induced to enter into a contract.  Proof that a party relied to its detriment on an alleged misrepresentation is, in other words, an essential element of a fraud claim.  That is because when a party has not incurred a contractual obligation, it has not been induced to do anything.

In order to establish a fraudulent inducement defense, the elements of fraud must be established as they relate to an agreement between the parties.  Under Texas law, a defendant can assert fraudulent inducement as a defense to a breach of contract claim if the defendant can show that:

1. The plaintiff made a misrepresentation about a material term to the contract to induce the defendant to agree to contract terms.
2. The plaintiff made the material misrepresentation knowing it was false or without knowledge of its truth.
3. The plaintiff made the misrepresentation with the intent that the defendant act on the misrepresentation.
4. The defendant’s reliance on the plaintiff’s misrepresentation was justifiable when the defendant agreed to the terms of the contract’s terms.
5. The defendant suffered an injury because it relied on the plaintiff’s misrepresentation.

In a fraudulent–inducement claim, the “misrepresentation” occurs when the defendant falsely promises to perform a future act while having no present intent to perform it.  The plaintiff’s “reliance” on the false promise “induces” the plaintiff to agree to a contract the plaintiff would not have agreed to if the defendant had not made the false promise.

 

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Duress as a Defense to Breach of Contract in Texas

A defendant to a breach of contract lawsuit in Texas may assert duress as a defense to both the formation of a contract and the performance of a contract. Essentially, duress as a defense indicates that one of the parties to the contract forced the other party to enter into a contract that they would not have entered into absent the other party’s wrongful actions or threats of wrongful actions. For example, duress may be a defense if the plaintiff made a credible threat to harm the defendant or defendant’s family unless the defendant entered into a contract. Duress may also exist where the plaintiff withholds or threatens to withhold something essential to the defendant’s business (like production, material, or distribution) unless the defendant enters into a new contract.

Under Texas law, duress (including economic duress) is a defense to breach of contract. Duress may be a defense in a breach of contract action if the defendant can prove the following:

1. The plaintiff engaged in or even threatened to engage in unlawful conduct without any justification.
2. The plaintiff’s actions or threats would destroy the defendant’s free will.
3. The plaintiff’s actions or threats actually overcame the defendant’s free will and caused the defendant to enter into a contract that the defendant would not have entered into without the plaintiff’s actions or threats.
4. The plaintiff’s actions or threatened actions were imminent.
5. The defendant was unable to protect themselves from the plaintiff’s actions or threats.

 

Under the defense of economic duress, a contract may be invalid or unenforceable where the other party has taken undue or unjust advantage of the defendant’s economic necessity or distress to coerce him into making the agreement.  However, courts will not invalidate a contract when the duress emanates from a third person who has no involvement with the other party to the contract.  One who sustains damage as a result of duress exerted by a third person may, however, sue the third person for damages.

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District Court Holds that Custodial FBI Investigation on Arrest for Nontax Crime Producing Tax Crime Information Not in Charges Originally Made Did Not Violate Rights (10/31/21)

In United States v. Lieber, No. 1:20-CR-10111-RWZ, 2021 U.S. Dist. LEXIS 197575 (D. Mass. Oct. 13, 2021), CL opinion hereand docket entries here, the Court denied the defendant’s motion to suppress statements made during a custodial interview by FBI agents after his arrest on the initial indictment charging nontax crimes.  I previously wrote on the superseding indictment Superseding Indictment for Former Harvard Chair on Tax and FBAR Crimes (7/29/20), here.

The opinion is very short and very well written.  I recommend readers of this blog read the whole thing.

In summary, the initial indictment charged Lieber with two counts of making false statements related to his federal funding for research at Harvard University.  Two FBI Agents arrested Lieber on July 28, 2020 pursuant to that initial indictment and took him to the Harvard University Police Department Headquarters where they questioned him for three hours.  The agents recorded the interview.  Before the questioning, they read Lieber the full Miranda rights for custodial interviews, which included the right to suspend the interview and consult with counsel.  In response to the Miranda warning about right to counsel, Lieber made equivocal statements about his need for counsel but did not expressly state that he wanted to consult with counsel before proceeding.  The Agents continued the interview and, in the course of the interview developed information that led to a superseding indictment which included two tax counts for tax perjury (§ 7206(1)) and two counts for failure to file an FBAR.

Lieber moved to suppress the fruits of the interview resulting in those additional counts in the superseding indictment.

As interpreted by the court, in the interview, Lieber did not make an unequivocal request for counsel.  Hence, the Court held that there was no Miranda problem with continuing the interview.  The Court also held that the circumstances of the interview were not coercive (enough) so as to prevent Lieber’s voluntariness in the interview.

These cases are fact-specific depending upon unique facts and nuances.  The Court gives an excellent discussion and probably as succinct as reasonable to capture the nuance.  I think therefore that I would disserve readers by attempting to offer more discussion than the summary I provide above.  I highly recommend reading the opinion.

 JAT Comments:

1. The interview was given in a nontax context.  FBI Agents made the arrest and conducted the interview.  If this had been a tax (or related FBAR) indictment ab initio, IRS Special Agents might have participated.  Most of the cases involving the issue where IRS Special Agents are involved are noncustodial interviews (meaning that there is no arrest or other custodial coercion that might put pressure on the voluntariness of the interview).  In such noncustodial interviews, the Agents will give a modified Miranda warning to account for the noncustodial nature of the interview.  See 9.4.5.11.3.1 (05-15-2008), Informing of Constitutional Rights in Non-Custodial Interviews, here; see also IRM 9.4.5.11.3.2 (02-01-2005), Informing of Constitutional Rights in Custodial Interrogations.  For other blog discussions, click the labels below for Miranda and Modified Miranda warnings.

2. As with many IRS interviews of targets of an investigation, the FBI Agents gave Lieber no advance notice before the interview other than the notice he received by being arrested when they showed up early (6:38 am at his Harvard office).  A typical strategy will be for the IRS Special Agents conducting a criminal administrative investigation to show up early, often at the home, without notice to the target taxpayer, so that he or she is caught off guard and more likely to say something damaging / incriminating because the lawyer (if he has one) will not be there.  The Agents (I infer) prefer an interview without the target’s lawyer present because that is likely to be the most productive for criminal investigation and prosecution.  Often, upon being read the modified Miranda warnings, the target will not invoke the right to counsel and will respond to questions, sometimes either telling the incriminating truth or telling a lie which is also a crime and thus incriminating.  Then, once the indictment comes, the target who is then defendant will move to suppress what he said.  If successful, the suppression may result in dismissal of the charges if the Government is unable to prove that it can convict on untainted evidence in a Kastigar hearing.  That was the gambit Lieber made, although it did not arise from an IRS investigation per se.

3.  As I noted above, after being read the full Miranda warnings, Lieber equivocated on a request for counsel.  The Court makes this interesting point in footnote 3 on page 6:

   n3 Defendant submits an affidavit along with his motion in which he attests to the following: “Once the government agent read me my rights, I wanted a lawyer. I requested a lawyer. I understood the agent’s interruption of my request for a lawyer as a denial of my request.” Docket #172 U13. However, as noted earlier, the question is whether defendant’s actual statements can be considered an invocation of his right to counsel, not what he said he intended at the time as stated in his post hoc affidavit.

4. One of the oft-repeated anecdotes (usually delivered to draw a laugh) by tax crimes lawyers involves a client who calls his lawyer about 10am to advise the lawyer that Special Agents had earlier come to his home to talk with him.  The conversation goes:

Lawyer [“L”]:  Did you tell them anything?

 Client [“C”]:  No.

 L:  How long were they there?

 C: About 2 hours.

There may be more embellishments depending who is recounting the anecdote, but that captures the point.

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Considerations When Divorcing Near Retirement Age

It is no secret that divorce can take a significant financial toll on those involved. The expense of divorce may be one thing. The biggest impact, however, can come in the separating of expenses and finances. In many cases, a divorcing couple may be moving from a two income household, sharing expenses, to a one income household carrying all the expenses. The transition can be difficult and will usually require careful planning and budgeting as everyone works on getting their footing under the new circumstances. For couples considering divorcing closer to retirement age, there is a whole other set of financial considerations that should be taken into account. As more and more people seek divorces in their later years, this topic becomes even more important to address. So, what should be taken into consideration when you are nearing retirement age and looking to divorce?

Consideration When Divorcing Near Retirement Age

It is not an understatement to say that a mid-life or later in life divorce can completely upturn retirement plans, especially when the financial impact of divorce is not properly accounted for. Think about it. When you’re closer to retirement age, you have less time in order to recover from the impact and losses involved in divorce prior to retirement. You have less time to pay off debt and less time to weather fluctuations in the stock market. While you get closer to the end of your wage and salary earning years, it can feel like a scramble to make up for financial hits with a steady paycheck.

Divorce, however, can be the fresh start many people not only want, but need. Getting divorced near retirement age can be the beginning of a new, brighter chapter. There are ways you can protect yourself financially when you are divorcing near retirement age, but it requires careful planning and execution. For instance, prior to divorcing, you should be knowledgeable about the financial situations of you and your spouse. Be aware of the assets you both hold jointly and separately. Get up to speed on the financial resources and liabilities that will be in play during divorce and after.

You should also consider whether or not you want to pursue the marital home in your divorce. Yes, a home can house memories and be a safe haven, but it can also be a financial liability. Take a hard look at the cost of living in the marital home and make a tough choice as to whether or not it is in your best interest financially to retain the marital home.

You should also be aware of the fact that retirement savings accounts can be subject to division in divorce if declared to be a marital asset. Keep yourself up to date about the status of your retirement accounts. You can get a copy of the Summary Plan Description from the retirement plan administrator.

Texas Family Law Attorneys

Are you nearing retirement age and considering divorce? Do not hesitate to reach out to the team at Navarrete & Schwartz to discuss your options. We are proud to serve the residence of Midland, Texas. Contact us today.

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Hospital Administrator Owes Trust Fund Penalty

Employment taxes can be deadly for businesses. Once a business gets behind, it can be impossible to catch up. Those operating a failing or struggling business may feel that using employment taxes as a short-term loan from the IRS is justified. The thinking may be that they are needed to keep employees employed, to save...... Continue reading Hospital Administrator Owes Trust Fund Penalty

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Dying Without A Will Can Be A Nightmare!

As an estate planning lawyer, I get weekly calls and emails from people struggling to cope death of someone they love. In addition to the grief they experience, many struggle financially because their loved ones died without engaging in any type of estate planning.

Some people don’t write Wills because they believe death is too unpleasant to consider. I had one client tell me his wife refused to engage in any type of planning because she believed it would hasten her death. Others misunderstand how property will pass upon their death. They think their property will all go to a surviving spouse, a domestic partner, or a specific family member even without legal documentation.

In reality, dying without a Will in Texas can be a nightmare for those you leave behind!

Much of the nightmare scenarios revolve around the rigidity of the intestacy statutes. The Texas intestacy statutes dictate who will receive the property of a deceased person who dies without a Will. It is the legislature’s best guess as to how someone in various life circumstances would want property distributed.

Intestacy Can Be a Nightmare in Blended Families

The Texas legislature assumes that if a married person dies without a Will and the surviving spouse is also the parent of all his children, he would want the surviving spouse to inherit all his share of community property. However, it also assumes that if the deceased spouse had children from another relationship, the deceased spouse would want his share of community property to pass to his children instead of his surviving spouse.

As a result, dying without a Will may result in a situation where estranged stepchildren end up owning all or a portion of a surviving spouse’s home or part of a stock portfolio the surviving spouse was counting on for retirement. This would be the case even if the surviving spouse had been the sole earner during the marriage. This is because all income earned during the marriage is presumed to be community property.

Intestacy Can Be A Nightmare in Non-Traditional Families

The intestacy statutes are also a nightmare in non-traditional families. An increasing number of people are choosing to cohabitate rather than marry. For them, dying without a Will can have unintended consequences.

The Texas intestacy laws do not give any inheritance rights to domestic partners. Therefore, if you die without a Will, your property will pass to those the state defines as your heirs rather than the person with whom you share your life. This can be especially devastating if your legal heirs have a contentious relationship with your partner.

And while the Texas Constitution gives surviving spouses a right to reside in a homestead for the term of their lives, that right does not extend to unmarried couples. So if your partner is living in a home you own and you die without a Will, your heirs can evict your partner from the home you shared.

Intestacy Can Be A Nightmare in Estranged Families

In some situations, the Texas Intestacy statutes can result in estranged family members inheriting property. For example, several years ago, I wrote an article about a deadbeat dad claiming a part of his deceased son’s estate.

Timothy Cole’s mother raised him after his father abandoned them when Timothy was seven years old.  He died of an asthma attack when he was 39 years old while incarcerated in the Texas Prison System for a crime he did not commit. In 2009, the state of Texas posthumously cleared him of any wrongdoing and expunged his record. His estate received $1 million in compensation for wrongful imprisonment.

Guess who reappeared to claim half of the award? The father who abandoned him and had not seen him for decades. Why? Because under the Texas intestacy statutes, he was a legal heir.

Intestacy laws are rigid and inflexible. They don’t consider the deceased person’s unique circumstances and may result in a distribution that seems neither fair nor equitable.

A Will give you the freedom to decide how and to whom your property will be distributed when you die. Without one, the people you love most may have to deal with a nightmare.

This article was originally published on October 31, 2018 and updated on October 31, 2021.

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The Pandemic of Islamaphobia

The COVIDd-19 pandemic has dramatically increased paranoia, hatred, and violence in the United States. 

 

In an October 21, 2021 article in Forbes’ digital magazine, business writer Robert Hart cited a recent Scientific Reports study that found gun violence increased during the pandemic in 27 states while declining in only one. Between March 1, 2020, and March 31, 2021, the study reports there were 51,000 incidents of gun violence across the U.S. as compared to 39,000 during the previous 13-month period.

 

Increased Violence, Hate Crimes

 

This social atmosphere of violence has led to an increased number of racist attacks on Asians, Muslims, and Islamophobic attacks on mosques. The latter is not surprising. As the nation drew closer to the 20th anniversary of the 9/11 attacks this year, American Muslims in general and mosques, in particular, have come under assault.  

 

Unfortunately, Texas ranks in the top ten states in the number of attacks on mosques.

 

The Pew Research Center reports that roughly 3.85 million Muslims (1.8% of the U.S. population) worship in 2700 mosques across the country. A March 2021 survey by Pew found that more than three out of every four Americans (78%) believe that Muslims face more discrimination than any other religious group in the country.

 

While the COVID pandemic has fueled all sorts of hatred (both racial and religious) in this country, the spike in attacks on Muslims in recent years can be attributed, in part, to the racist anti-immigration policies of the previous presidential administration. 

 

American Muslims Fear for Safety

 

Those policies, and the current racial and political divisions in the country, have prompted nearly 80 percent of American Muslims to have some concern about their safety, according to Hatem Bazian, lecturer at the University of California, Berkeley, and leader of the college’s Islamophobia Research and Documentation Department.

 

In Houston, the local FBI office announced it has recently launched a “hate crime reporting campaign,” pointing out that Texas had at least 406 reported hate crimes in 2020—ranking the state 30th in the number of hate crimes per 100,000 people.

 

The problem of Islamophobia is not unique to the United States.

 

 Policy Options Politiques—a digital magazine that focuses on social and political issues in Canada—reports that the COVID pandemic in that country has led to significant increases in attacks on Muslims and Islam. The magazine accused news outlets—New York Times, BBC, CNN, and Canada’s CP-24—of using “irrelevant pictures” linking Islamic religious practices as sources for the contagion.

 

The magazine stressed that “It’s clear that Canadian Muslims are carrying another burden alongside the stressors of the pandemic: the stigma of exclusion. And worse, this is coming at a time when the Muslim Association of Canada and other Muslim organizations, through their leadership and frontline services, have helped countless Canadians – actions that have been recognized by several members of Parliament as well as Trudeau, himself. Ultimately, Islamophobia not only hurts Canadian Muslims and divides our shared communities, it is also detrimental to Muslim efforts on the frontlines of the pandemic.”

 

The tragedy of the political and pandemic-inspired attacks on Islam is that Muslims in the U.S. and other parts of the world have undertaken aggressive efforts to fight the COVID pandemic. The Institute for Social Policy and Understanding (ISPU) reports that:

 

“Muslims also make up the most ethnically diverse faith community in the country, with 28% of Muslims identifying as Black or African American. Data show that Black Americans are dying from COVID-19 at disproportionately higher rates, placing Black Muslims at the intersection of the socioeconomic and racial impact of the disease ...

 

“And while American Muslims overall make up only about 1% of the population, they make up a disproportionately large segment of the frontline workers risking their health and that of their families in the fight against COVID-19. For example, in Michigan, 15% of all doctors and 11% of all pharmacists are Muslim. In New York City, one of the hardest hit areas of the country, Muslims make up a full 10% of the city’s medical doctors and 13% of pharmacists. Muslims also make up a staggering 40% of all New York City cab drivers, an under-recognized group of essential workers risking their health every day by transporting ill customers to health appointments or the pharmacy.”

 

Racial and religious hatred knows no bounds. It is a social cancer that not only fuels but feeds off of violence. America may recover from the COVID pandemic, but it will take decades to heal the social, racial, and religious fractures it has inflicted upon the nation.

 

 

 

 

 

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Russian Bank Founder Sentenced for Crimes Related to Expatriation to Avoid Tax (10/30/21)

I recently wrote on the plea deal for Oleg Tinkov for evading tax on renouncing his citizenship.  See Plea Deal with Russian Bank Founder for Tax Perjury Requiring Payment of More than $500 Million (Federal Tax Crimes Blog 10/2/21), here.  Tinkov has been sentenced consistent with the plea deal.  See DOJ Tax Press Release titled Founder of Russian Bank Sentenced for Felony Tax Conviction Arising from Scheme to Evade Exit Tax while Renouncing his U.S. Citizenship (10/29/21), here.

Key Excerpts from the sentencing press release are:

The founder of a Russian bank was sentenced today for his felony conviction for filing a false tax return. As required under his plea agreement, prior to sentencing, Oleg Tinkov, aka Oleg Tinkoff, paid $508,936,184, more than double what he had sought to escape paying to the U.S. Treasury through a scheme to renounce his U.S. citizenship and conceal from the IRS large stock gains that he knew were reportable. This includes $248,525,339 in taxes, statutory interest on that tax and a nearly $100 million fraud penalty. Tinkov was additionally fined $250,000, which is the maximum allowed by statute, and sentenced to time served and one year of supervised release.

Tinkov was indicted in Sept. 2019 for willfully filing false tax returns, and was arrested on Feb. 26, 2020, in London, United Kingdom (UK). The United States sought extradition, and Tinkov contested on medical grounds. In public records, Tinkov has disclosed that he is undergoing a UK-based intensive treatment plan for acute myeloid leukemia and graft versus host disease, which has rendered him immunocompromised and unable to safely travel in the foreseeable future.

On Oct. 1, 2021, Tinkov entered a plea to one count of filing a false tax return. According to the plea agreement, Tinkov was born in Russia and became a naturalized United States citizen in 1996. From that time through 2013, he filed U.S. tax returns. In late 2005 or 2006, Tinkov founded Tinkoff Credit Services (TCS), a Russia-based branchless bank that provides its customers with online financial and banking services. Through a foreign entity, Tinkov indirectly held the majority of TCS shares.

In October 2013, TCS held an initial public offering (IPO) on the London Stock Exchange and became a multi-billion dollar, publicly traded company. As part of going public, Tinkov sold a small portion of his majority shareholder stake for more than $192 million, and his assets following the IPO had a fair market value of more than $1.1 billion. Three days after the successful IPO, Tinkov went to the U.S. Embassy in Moscow, Russia, to relinquish his U.S. citizenship.

As part of his expatriation, Tinkov was required to file a U.S. Initial and Annual Expatriation Statement. This form requires expatriates with a net worth of $2 million or more to report the constructive sale of their assets worldwide to the IRS as if those assets were sold on the day before expatriation. The taxpayer is then required to report and pay tax on the gain from any such constructive sale.

Tinkov was told of his filing and tax obligations by both the U.S. Embassy in Moscow and his U.S.-based accountant. When asked by his accountant if his net worth was more than $2 million for purposes of filling out the expatriation form, Tinkov lied and told him he did not have assets above $2 million. When his accountant later inquired whether his net worth was under $2 million, rather than answer the question, Tinkov filled out the expatriation form himself falsely reporting that his net worth was only $300,000. On Feb. 26, 2014, Tinkov filed a 2013 individual tax return that falsely reported his income as only $205,317. In addition, Tinkov did not report any of the gain from the constructive sale of his property worth more than $1.1 billion, nor did he pay the applicable taxes as required by law. In total, Tinkov caused a tax loss of $248,525,339, which he has paid in full with substantial penalties and interest as part of his plea, together with tax liabilities for other years.

 JAT Comments:

 1. I won’t repeat the comments in my prior blog announcing the plea deal.

 2. Tinkov paid a whopping amount related to taxes, penalties and interest.  There was no FBAR count  or civil penalty in the financial cost.  Surely he had foreign accounts while he was a U.S. citizen.  It may be that the criminal and civil penalty statutes of limitations (5 years and six years, respectively) had expired. I am not aware of the underlying facts to address the potential for FBAR criminal or civil penalties.

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Mediation in Texas divorce cases

For many people, getting a divorce brings up images that we have seen in movies and television shows. I’m sure you know exactly what I’m talking about as far as the plot of these shows: a rich husband, a young wife, an ex-wife who feels spurned in favor of a new bride, and several children who are irresponsible and whose lives are in disarray. Sometimes hilarity ensues. Often we walk away from the movie or television show shaking our heads in frustration at the state of that family. This could never be one of our families, right?

The reality is that no family is perfect. As much as we laugh or shake our heads in frustration at the things we watch on a screen that are related to divorce, our own lives can sometimes mirror those sort of sad, funny, or frustrating scenes. Life is just that way sometimes. In reality, we want our families to always work well as a unit and for us to be able to act as a team. However, sometimes those goals and aspirations come barreling headfirst into a wall. What we don’t know is if the problems in our family life and marriages can be salvaged. Sometimes they can be. Unfortunately, not every marital issue can be sorted out as a result of patience, time, and communication. 

If you find yourself in a situation where you are starting a divorce then you should not feel alone. It can feel like you are all by yourself in terms of your situation. That nobody knows exactly what you are going through or how you can get out of the mess that she finds herself in. What is going to happen with your children? Is your relationship with your kids ever going to be the same after the divorce is over? How about your retirement savings and other property? How can you salvage those and not have something horrendous happen to your annual property after having gone through a divorce?

That brings me to another point I’d like to discuss regarding divorces. You should be careful about the advice that you take on from those around you. Now, I am not saying that you should ignore the good-natured advice provided to you by others. There almost certainly will be friends and family members who seek to provide you with information that can help you in your divorce. However, there will also be people who fall into the misery loves company category Anne wants nothing more than to share with you their horror stories about divorce for no apparent reason.

These are the folks that you need to be wary of. Receiving information about divorce is never a bad thing, necessarily. Information is vital to divorce or any other life event that you are going through for the first time. You can use the information to provide you with context, prepare you for upcoming events and even two provide you with advantages should the situation arise. However, Be careful of the sources that you take in your information from. That does not mean you should be rude or dismissive towards people. However, the sources you take and rely upon for information need to be trustworthy and experienced. Unfortunately, most of the people that we come across in our daily lives who have gone through a divorce just have the perspective of what they have gone through. These folks do not know your circumstances, your life, or probably even you or your spouse all that well.

This is where I would like to discuss an important subject related to Texas divorces with you all today. Those scenes from television shows and movies that we have discussed so far today are important in the sense that they provide us with much of the context and information that we encounter regarding divorce. Unless we have a close family member or friend who has gone through a divorce then movies and television shows are probably the most likely way that we have 2 come across information about divorce. The trouble that we run into is that these depictions are done for entertainment purposes rather than to provide substantive knowledge. With that said, we can still gain knowledge and utile eyes the resource of this blog to better ourselves and to prepare for any eventuality. 

Before we discuss mediation in earnest, I would like to give you a brief overview of what a divorce looks like in Texas. We will begin by discussing the initial documents filed by you and your spouse, a brief timeline of events, and then finally end up by discussing mediation. The better you can be prepared For each stage of a divorce the better off you will be. If you have any questions about the material that we have discussed in today’s blog post then I recommend that you contact the attorneys with the Law Office of Bryan Fagan. We would love to set up a free-of-charge consultation for you with one of our experienced attorneys. We offer consultations at both of our office locations and via video.

An overview of Texas divorce cases

When it comes to getting a divorce the process in general works the same for everyone. While your family may have specific circumstances and factors that others do not the general process that you all will file is the same. A divorce in Texas begins with an original divorce petition. The original petition is a short and simple document that names you as the filing party, your spouse as the responding party, and any children who are under the age of 18. Within the original divorce petition, you will also be asking the judge for any relief that you are seeking.

Your original divorce petition Must be served upon your spouse. Service is the essential way To provide notice to Your spouse about the divorce that has been filed. Cannot simply file the divorce petition and then expect your spouse to know about it without having provided notice to him or her through service. If you do file the divorce and never serve your spouse then you can expect nothing to happen in the case. Likely, you will receive a notice in the mail or electronically telling you that your case will be dismissed unless you proceed with service in the next stages of a case. Many courts will only allow your case to sit but no action hasn’t been taken for six months before holding a hearing to dismiss the case.

The method that is employed by most people, and is preferred by the court, when it comes to service is personal service. This means that you will hire A private process server or have a sheriff or constable pick the paperwork up from the courthouse And then locate your spouse indirectly hand it to him or her. You would inform the process server or constable of where your spouse is likely to be at what time. Typically, people try to avoid serving their spouse at work or another public place where it can be an embarrassment to do so.

For those of you wondering, there are alternative ways to serve notice to your spouse about the divorce. It does not ruin your chances of getting a divorce if you are not able to serve Your spouse personally. For instance, if you show a judge that you have been diligent in attempting to serve your spouse personally but have been unsuccessful in doing so you can petition the court for alternative means of service. Posting notice of the divorce in a magazine or newspaper, posting the divorce on the courthouse steps, or even utilizing the mail to do so and posting the divorce on their last known address are methods that could be employed in your divorce if you are not able to personally serve your spouse.

Bear in mind, however, that there are risks to alternative means of service. For instance, it is much easier for your spouse to obtain a new trial if they legitimately do not come across your notice that was served in a newspaper or a magazine. The state of Texas wants to provide every person an opportunity to participate in their divorce or any other civil case for that matter. For this reason, a court will look favorably upon an explanation that your spouse legitimately did not know the divorce was going on. If you get a default judgment in your divorce then beware that that default judgment can come back to you in the form of a new trial being granted if service was obtained using an alternative method.

Once you’re spouse served with the divorce papers then he or she has 20 days 2 file an answer to your original petition for divorce. An answer is a legal pleading that will confirm receipt of the petition and will allege any defense is set forth to the claims in your petition for divorce. The answer, just like the petition, does not have to be a long document. Frequently, if you are the party who needs to respond to a divorce petition you could file a counter-petition wherein you can allege specific claims and ask for relief of your own.

Once the original divorce petition has been filed an answer has been received then the divorce can begin. You can go in a couple of different directions at this stage of the case. Either you or your spouse will likely contact the other to set up mediation. this mediation date will occur before a temporary orders hearing period temporary orders are the initial phase of a divorce case. It will allow your family to begin to transition into living in separate households, sharing custody of your children, and generally speaking adjusting to life separate from your spouse. Not only that, it will allow both sides to prepare your case for either a trial or for final orders mediation.

There are two different types of mediation: temporary orders mediation in final orders mediation. Mediation involves you and your attorney selecting a mediator with the opposing attorney and your spouse. The purpose of mediation is to determine whether or not you and your spouse can settle your issues outside of court rather than attend either a temporary orders hearing or a trial. You can look at going to court as a place of last resort for your case. However, most family courts in Texas require that you and your spouse attempt to get your case at least one time before attending either hey temporary orders hearing or trial. 

This is because the courts in Texas are always overburdened with family cases and because mediation is so effective at settling cases and helping people reach equitable conclusions. The burdening of the court system with family law cases is not something that really should enter into your mind but it is a reality for the family court judges. I have seen family court judges to order people to attend mediation multiple times before allowing them to set foot in court either for a temporary order hearing or trial. I have had judges in certain cases that I have worked on go so far as to stop temporary orders hearing midway and ask us to step into the hallway to see if we can work on any kind of settlement agreement informally. This is the extent to which many family court judges will go to allow cases with greater need to be heard. 

Additionally, nobody knows you and your spouse in circumstances better than either of you. No matter how long a temporary orders hearing or trial lasts you all are much more likely to negotiate your way to a worthwhile settlement and you are to get there in a trial. The trial can be seen as a place of last resort for you and your family. There is nothing wrong with having your case heard before a judge but do not expect that it will result in the best possible outcome for your family. Usually, that occurs in mediation.

In most cases, when you are ten temporary orders mediation you will be tasked with determining temporary issues related to child custody, conservatorships, child support, and the basics of running separate households during a divorce. You will not be asked to do anything with your family home in terms of deciding whether to sell it or in dividing Community property. Temporary orders mediation is intended to help you and your spouse get through the initial stages of your case and to avoid the need for a temporary order hearing.

With that being said, you need to be aware that what ends up happening in a temporary orders hearing or mediation usually looks a whole lot like what final orders do. This means that you should not go easy in temporary orders mediation with the thought that you can correct any mistakes for negotiating more aggressively for final orders. Once orders are created for temporary orders you are more likely to see that they are mirrored for final orders. This means you need to be just as prepared for temporary orders mediation as you do for final orders mediation.

Temporary orders mediation results require you to come in with a household budget showing your income and outgo. If you will be requesting temporary spousal support for the duration of your divorce you need to be justified in your asking for it. For example, if you expect to be paid temporary spousal support then you need to have a strong basis for having asked for it. Next, you need to be sure that your spouse has the money in their budget to be able to pay you this temporary support. Again, you may be the most deserving person in the world when it comes to temporary spousal support but if your spouse does not have the money in the budget to pay it to you then there is little use in asking.

For final orders, you should be prepared to come in with a proposed Community property division including how you see your Community property states being divided as well as any other considerations retirement savings and your home. Preparing for temporary orders mediation should give you some perspective as to how to prepare better for final orders mediation. Working with an experienced family law attorney is the best way to be adequately Prepared for both final orders and temporary orders Mediation. 

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

if you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case. Thank you for your interest in our law office and we hope that you will join us tomorrow as we continue to share helpful and relevant information about the world of Texas family law.

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Recanted Testimony in Child Sexual Assault Cases

Michael Charles Hill was convicted by a Hunt County, Texas jury in April 2012 for aggravated sexual assault of a child and indecency with a child. He was sentenced to consecutive(stacked) life terms. A grand jury had indicted Hill in March 2010 for the two offenses that occurred in 2006 and 2007. The Texas Court of Criminal Appeals (CCA) on October 20, 2021, upheld Hill’s two convictions but remanded his aggravated sexual assault case back to the trial court for a new sentencing hearing.

 

The Hill decision by the CCA is remarkable not because of its final result but for the information it revealed. 

 

Multiple Recantations and Changed Stories Undermine Conviction

 

The victim, who was under 14 years of age, lied to the police during their investigation of her alleged sexual abuse by Hill. Before Hill’s April 2012 trial, she recanted her sexual abuse allegations against him during medical examinations. Yet, at trial, she reaffirmed those allegations. The jury was not aware of her earlier recantation or her lies to the police. Again, in 2014, the victim recanted her allegations against Hill in an affidavit given to Hill’s post-conviction attorney, who was preparing for an impending habeas corpus hearing. Before that hearing could take place in 2016, the victim once again recanted her 2014 affidavit recantation.

 

The underage victim in the Hill case is a serial liar.

 

False Allegations Not Uncommon

 

False sexual assault allegations by underage children are not as uncommon as most people think. This tragic reality was demonstrated to the entire nation when between 1984 and 1986 at least 30 defendants were wrongfully convicted in Kern County, California, based on false child sexual assault allegations. This case became nationally-known as the “Bakersfield Witchhunts.”

 

 Again, in 2012 the National Registry of Exonerations released a report concerning 102 exonerations across the nation. The report found in the child sexual assault cases, 74 percent of the exonerations involved false allegations.

 

COVID Quarantine Causes Abuse to Surge

 

Allegations of child sexual assault have accelerated during the COVID pandemic.

 

Most allegations of child sexual assaults involve either a family member or someone in the family’s social orbit. As the COVID pandemic isolated and confined people to their homes, the reports of child sexual assaults increased anywhere from 20 to 70 percent. Some mental health experts have called the situation a “public health crisis.”

 

The National Center for Missing and Exploited Children says that reports involving allegations of child sexual abuse and child exploitation doubled from 6.3 million during the first half of 2019 to 12 million during the first half of 2020. The Centers for Disease Control puts the costs at $210,000 for each sexually abused child during the pandemic.

 

Inherent in the increased numbers of child sexual assault allegations during the pandemic is the reality that thousands of the reports are false. It is estimated that anywhere from 6 to 15 percent of child sexual assault allegations are false.

 

Michael Charles Hill is in the Texas prison system. He has been incarcerated for more than eleven years based on allegations of sexual assault abuse leveled by an underage victim who either lied or changed her testimony four times. Whether or not Hill’s post-conviction attorney will prevail on any newly discovered evidence claim remains to be seen. Recanted testimony is considered newly discovered evidence in Texas. What is certain is that Hill has a life sentence for the indecency with a child conviction that he must serve at least 30 years before he becomes parole eligible. He remains subject to a possible sentence of 5-99 or life for the aggravated sexual assault conviction now on remand.

 

Bottom line: Michael Charles Hill will most likely die in prison because courts generally apply the rule that recanted testimony is presumptively false or not reliable. 

 

There will be thousands of legitimate allegations of child abuse made during the pandemic. These perpetrators should be treated harshly. However, there will also be hundreds, if not thousands, of false allegations made by children frustrated and angry because of restrictions necessitated by the pandemic. These false allegations will most often result in a rush to criminal charges, convictions, harsh sentences, and years, if not decades, in prison.

 

We don’t know if Michael Charles Hill is guilty. What we do know is that no person should spend decades in prison based on the testimony of a child who has repeatedly changed their story or recanted.  

 

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What to Include in a Service Contract

In your business, you may contract with others to either provide or receive services. It is often a necessary part of doing business. Resist the temptation to enter into a mere oral understanding when you are involved in such dealings. It can result in confusion and needless conflict. Instead, put all of the expectations of the service relationship in a written service contract, otherwise known as a service agreement.

What to Include in a Service Contract

A service contract or agreement can set both parties at ease and manage expectations for the scope of services to be provided or receive right from the start. In order to maximize the many benefits that a solid service contract can offer, there are certain elements that you should take care to include. Your written service agreement should include:

• Naming the parties involved in the agreement: Name and describe the parties involved in the service contract as well as the addresses of all parties to the contract.
• Describing the services to be performed: The work that is to be performed pursuant to the contract as well as the responsibilities of the parties for completing that work and receiving payment should be detailed in the agreement. This is the heart of the agreement and the reason you are entering into the relationship in the first place. Be clear on the scope of the services that will be provided. The more specific you can be, the better.
• Describing the fees and fee payment schedule: Will billing for services rendered be on an hourly or weekly basis? Will there be a flat fee for the project? Whatever the fees and payment schedule, the agreement should also detail what work and other expenses incurred in the course of conducting the service is included in those fees.
• Stating the start and end date of the contract: Your agreement should explicitly state when the service contract period begins as well as when the contract will end. It should also include a provision for under what circumstances the service contract can be terminated.
• An indemnification clause: You may want to consider including such a clause in your agreement which will hold the other party liable for paying out on damages and other losses that may be sustained over the course of the service providing.
• An amendment section: This section should outline how any party to the contract can seek changes to the agreement over the course of the service relationship. Usually, an amendment to the agreement will require written consent from all parties to the agreement.

Also, be sure to include a signature block for both parties to sign. It is also a good idea to have the signatures dated as well as notarized. This can help guard against a party to the contract later saying that they did not actually sign the agreement.

Business Law Attorney

Start your business relationships off on the right foot with comprehensive written agreements in place. To do so, the Kumar Law Firm is here for you. Contact us today.

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A Biometric Database run by a Cryptocurrency Corporation?

Privacy Plus+

Privacy, Technology and Perspective

A Biometric Database run by a Cryptocurrency Corporation? – Not Now, Please; Maybe Not Ever: “Worldcoin,” a startup founded by Sam Altman and Alex Blania, has launched a cryptocurrency based on iris-scanning. Worldcoin’s valuation is said to have passed $1 billion already and its founders project that by 2023, 1 billion people will use Worldcoin’s technology. Details about Worldcoin’s launch appear in the following link:

https://worldcoin.org/how-it-works

Worldcoin: An Overview

Worldcoin combines (i) blockchain with (ii) an iris-scanning device, creepily called “the Orb.” To earn tokens, users must submit to Orb iris-scans. Worldcoin calls this “giving a free share [of Worldcoin tokens] to everyone on Earth.”  

“Free” is ironic to the point of arguably misleading, however. Worldcoin tokens are only available in exchange for the user’s surrender of his or her biometric iris prints. In our view, this transaction may be many things, but if it requires the surrender of your biometric eye scans, it certainly isn’t “free.” 

Worldcoin’s Privacy Claims:

On its website, Worldcoin touts the personal information it’s not asking for, while claiming to have mysterious, near-secret knowledge to use and cloak what it does want. Says Worldcoin: “We have designed Worldcoin in a way that both requires as little personal data as possible and preserves the privacy and anonymity of its users. Specifically, we determine whether you are real and unique without requiring you to provide personal information like your name, email address, physical address, or phone number. To make all of this possible, we use technological and cryptographic techniques that many people are not yet familiar with.” (emphasis added)

Worldcoin claims to create identifiers that correlate to the iris scans, but not to store the original scans themselves. Yet the identifier that is iterative of the iris scans directly identifies each individual user, and that identifier is stored in a presumably centralized database for the purpose of “checking uniqueness.”  Why biometrics are required for this kind of check is an open question. A link to that webpage describing all of this follows:

https://worldcoin.org/privacy-by-design

In its Privacy Statement, Worldcoin is also circumspect about its use of biometrics. It references Worldcoin’s collection of “Authentication data” and generally offers vagaries about the use, sharing and security of that data. A link to that Privacy Statement follows:

https://worldcoin.org/privacy-statement

Here are some questions that we have on a cursory review:

Who are they? In its Privacy Statement under the “International Data Transfer” section, Worldcoin says it means to share its data “within our family of companies, partners, and service providers based throughout the world.” However, it doesn’t say who its “family of companies, partners, and service providers” are. However, its Terms of Use do disclose that Worldcoin is owned by Tools for Humanity Corporation, a Delaware corporation.  A link to the Terms of Use follows:

https://worldcoin.org/tos

So our question is: Who will have access to the data and under what conditions?

What will they do with their hashed database of your iris scans (or identifiers)? Worldcoin’s Privacy Statement doesn’t say much about that, either. But some of the Statement’s information appears to be contradicted by other information that is publicly available. For example, on Twitter, it’s been noted that with respect to data use, Worldcoin’s current job openings include positions demanding expertise in machine learning, facial recognition, and creating larger data sets. See M. BTC (@MarkMulvey) October 22, 2021, https://twitter.com/m__btc/status/1451454389068222466.

And how is Worldcoin securing this information? With respect to the all-important issue of data security, Worldcoin’s Privacy Statement hedges, declaring that Worldcoin “strives to ensure that our systems are secure and that they meet industry standards, “seeks to protect Data that is provided to Worldcoin by third parties and by you,” and “endeavors to engage third-party service providers that have security and confidentiality policies” (emphasis added). “Strives,” “seeks,” and “endeavors” stop well short of any assurance that their cybersecurity measures will work — or even that they are being held to any specific industry standard, much less assessed or tested. While such language is not atypical, overall, the Security section of the Privacy Statement lacks specificity. We also find Worldcoin’s professed compliance with “industry standards” to be incongruent with the statements made by Worldcoin on its “Privacy by Design” page, referenced above, where, as previously mentioned, Worldcoin declares: “we use technological and cryptographic techniques that many people are not yet familiar with.” (emphasis added)

Privacy Commentators are Noticing:

Worldcoin’s use of biometrics has not escaped attention from privacy commentators. In response to Worldcoin founder Sam Altman’s Twitter announcement about the launch, Edward Snowden (of all people) tweeted:

This looks like it produces a global (hash) database of people’s iris scans (for “fairness”), and waves away the implications by saying “we deleted the scans!” Yeah, but you save the *hashes* produced by the scans. Hashes that match *future* scans.

Don’t catalogue eyeballs.

— Edward Snowden (@Snowden) October 23, 2021, https://twitter.com/Snowden/status/1451990496537088000

When Altman expressed surprise about the controversy, Mark Mulvey, author of the crypto-investing newsletter “Surf Report,” responded:

Interesting?

You missed the entire zeitgeist of tech, culture, and finance right now

The extreme surveillance and compliance measures in response to the pandemic combined with irresponsible centralized banking policy suggest now is not the time for a biometric coin corporation.

— Mark (@MarkMulvey) October 23, 2021, https://twitter.com/MarkMulvey/status/1452034709740036102?ref_src=twsrc%5Etfw

Our View: Biometrics and Cryptocurrency should Not be Combined, especially where Data is Stored a Centralized Database presumably run by a For-Profit Company:

Confirming identity through biometrics is almost uniquely dangerous, both to a person’s privacy from sweeping commercial and governmental surveillance, and as a matter of cybersecurity which the affected person can’t control. Some biometrics (such as facial recognition as you walk down a street) are readily used in public and en masse, while others—like fingerprints and iris or retina scans—can’t be changed or disguised.

Once biometrics like these are compromised (by hacking, sale or use without authority, or however else), the person they identify has, in effect, lost control of his or her identity altogether and is at a heightened, perhaps irreducible risk for identity theft.

In the past, we have written extensively about privacy and biometric information. One of our posts, entitled, “The High Cost of Groceries – Paying with Iris Scans” appears in the following link:

https://www.hoschmorris.com/privacy-plus-news/privacy-plus-the-high-cost-of-groceries-paying-with-iris-scans

Here, the cost of Worldcoin is too high because it comes at the expense of the biometric privacy of its users. In our view, centralized biometric databases should not play a role in the future of cryptocurrencies — especially cryptocurrencies that are controlled by controlled by private enterprises whose practices are opaque and largely unregulated.

—

Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet, and technology. Open the Future℠

 

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Was Evidence “Admitted” During Zoom Hearing?

Kazi v. Sohail

Dallas Court of Appeals, No. 05-20-00789-CV (October 28, 2021)

Justices Molberg, Goldstein (Opinion available here), and Smith

Kelli Hinson

        After conducting a hearing via Zoom, the trial court entered a temporary injunction against Defendants, and Defendants appealed, arguing there was no evidence to support the order. They contended that the Plaintiff had presented no live witnesses and that none of the affidavits or exhibits referred to during the hearing were actually admitted into evidence.

        The Dallas Court of Appeals disagreed and affirmed the temporary injunction. The trial court’s emergency standing order in effect at the time of the Zoom hearing—prompted by the COVID-19 pandemic—encouraged litigants to present evidence through affidavits, declarations, and depositions rather than through live testimony, when possible. The order further provided that parties wishing to admit exhibits or other evidence must electronically deliver the same to the court reporter, court coordinator, and opposing counsel prior to the hearing. Plaintiff’s counsel complied with that order and, during the hearing, referred to the evidence that was “put on the record” and stated he would consider such evidence “part of the record unless any objections arise.” Defendants’ counsel did not object to the evidence being “put on the record” and did not object to Plaintiff’s counsel referring to the evidence throughout the hearing. In the temporary injunction order, the trial court referred to the “evidence presented” during the hearing and stated that Plaintiff had “offered evidence” in support of his position.

The Court of Appeals held that, even though the trial court did not use “magic words” admitting Plaintiff’s affidavits and other electronic submissions into evidence, it was clear from the record that the trial court considered the electronically submitted evidence in determining whether to grant the temporary injunction. Under those circumstances, the Court concluded that the trial court did not abuse its discretion in granting a temporary injunction based on the electronically submitted evidence.

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Pro Bono Spotlight: Gladys Marcos

The State Bar of Texas, the Texas Access to Justice Commission, the American Bar Association, and others proudly support National Pro Bono Celebration Week (October 24-30). Pro Bono week is an opportunity to educate the public about the good work the legal community does to improve the lives of vulnerable Texans and to encourage more individuals to get involved in pro bono support of the legal system. During the week, we will feature stories of pro bono volunteers.

Gladys Marcos is a 2L at St. Mary’s University School of Law and is from Commerce. She is president of the Immigration Law Student Association and secretary for the First-Generation Law Student Association. Marcos’ goal is to become an immigration attorney.

What kind of pro bono do you do and how long have you been doing it?

The summer of my 1L year was when I began my pro bono work at the International Rescue Committee Dallas in its Unaccompanied Minors program. My focus in pro bono work has been on immigration. This year as a 2L, I am a student associate at the Hunter Clinic for Victims of Crimes Against Women where I have been able to continue my work in immigration law.

Why is pro bono important to you?

Pro bono work is often the only way some can access legal services. I believe that everyone should have access to legal representation. For this reason, I know that putting in my time is something that I can do to ensure accessibility for communities in need. As someone whose parents have used immigration pro bono services before, I understand the importance of pro bono work and it is now my opportunity to give back.

What have you learned from doing pro bono work?

Doing pro bono work has only strengthened my passion for service and the law. I have learned that it is a privilege to be able to provide legal services to others. Doing pro bono work has also provided clarity in legal goals.

What would you say to a fellow student who is thinking about doing pro bono for the first time?

For someone who is interested in doing pro bono services for the first time, I would encourage them to find an area they have an interest in. This can make your experience more meaningful. Pro bono work is also a great way to network, create community ties, and gain experiences that all law students need.

Share one of your favorite pro bono success stories.

I have always been active in service work, from volunteering at shelters to registering people to vote. I figured that doing pro bono work would be similar in the sense that I was helping others. It was not until I began learning about the law myself did I really understand the complexity of it. So, when I began working with unaccompanied minors, I gained a new appreciation for service. Helping a client from his first intake interview to prepping him for his asylum interview was such a great experience. Creating a lasting connection with a client through pro bono work has been one of my biggest successes.

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Pro Bono Spotlight: Fernanda Palacios Herrera

The State Bar of Texas, the Texas Access to Justice Commission, the American Bar Association, and others proudly support National Pro Bono Celebration Week (October 24-30). Pro Bono week is an opportunity to educate the public about the good work the legal community does to improve the lives of vulnerable Texans and to encourage more individuals to get involved in pro bono support of the legal system. During the week, we will feature stories of pro bono volunteers.

Fernanda Palacios Herrera is a 3L at St. Mary’s University School of Law and her hometown is San Juan Buenaventura, Mexico. She is a Pat Tillman Scholar, a member of the Immigration Law Student Association (former vice president, 2020- 2021), the Hispanic Law Student Association, former social chair (2020-2021) for the Public Interest Law Foundation, and a student attorney for the Immigration and Human Rights Clinic. After law school, Palacios Herrera plans to practice immigration law.

What kind of pro bono do you do and how long have you been doing it?

I have been active in pro bono since 2012. While in undergrad, I helped organize free legal clinics for Deferred Action for Childhood Arrivals, or DACA, recipients and volunteered at citizenship drives and free legal clinics in Austin. In 2018, while working at Refugee Services of Texas, I collaborated with the University of Texas Immigration clinic to organize free Temporary Protected Status renewals.

While in law school, I have continued my service and community involvement by volunteering at various immigration nonprofits. The majority of my pro bono work during law school has been with asylum seekers. During my first spring break in law school, I volunteered at Diocesan Migrant & Refugee Services, preparing country conditions, asylum briefs, and asylum applications. I have also had the opportunity to assist Akin Gump Strauss Hauer & Feld and AT&T attorneys with their pro bono Migrant Protection Protocols cases while interning for the Human Rights Initiative of North Texas, or HRI.

During my time at HRI, I was introduced to Lawyers For Good Government’s Project Corazon, an organization on the ground in Matamoros, Mexico, assisting migrants. Since connecting with Charlene D’Cruz, the director of Project Corazon, I have been actively volunteering with them doing country condition research, asylum applications, and helping create asylum application educational modules to train pro bono attorneys nationwide.

Why is pro bono important to you?

Pro bono is important because everyone needs an advocate. I come from a low-income family, and I have seen how dire pro bono services are for my community. Legal services are often too expensive, and those who need them most cannot afford them. For that reason, after getting my first glimpse of pro bono work, I have continued serving, especially with immigration. Additionally, after working at immigration nonprofits, I learned that there are nowhere near enough attorneys providing free or low-cost legal services, which needs to change.

What have you learned from doing pro bono?

Pro bono has taught me that the need for services is never-ending, and we must always help in some way. Through pro bono, I have met the most resilient, strong-willed, and most amazing people. When my family needed legal services, they received them through free legal clinics. For that reason, among many others, I want to continue giving back to the community the services my family benefited from. Additionally, pro bono has served as my reminder of why I am in law school. When I feel discouraged, I remember how many people need public interest attorneys. Remembering that I can help others helps me push through the many challenges in law school.

What would you say to a fellow student who is thinking about doing pro bono for the first time?

Just do it! Pro bono is so rewarding and no matter how many hours or how much pro bono you do, you are helping someone in need. Pro bono will not only help you identify your passion and build skills, but it will also help you get to know the community that surrounds you.

Being in law school is a privilege, and there is no better way to use the skills we learn than to use them to help people in need. The demand for free legal representation is greater than the number of attorneys willing to provide these services. However, with your help and the help of our peers, we can reach more people who otherwise might go without legal representation because of their inability to pay.

Share one of your favorite pro bono success stories.

I have many favorite pro bono stories, but because immigration cases last many years, I have not witnessed the majority of their outcomes. Last year while volunteering with Project Corazon, I helped a single mother and her small son apply for asylum. They were from Central America and had been in Mexico under the Migrant Protection Protocols, or MPP, for nearly a year. While filling out her asylum application, she vividly described the horrendous things she and her son went through in their native country. Her voice was shaky, and it would break as she recounted the traumatizing events, but she finished every story with happiness in her voice, saying that she was better now. She was strong, resilient, full of love, grateful for life, and the happiest person I have met, even though she had such a sad story. I worked hard on her asylum application and kept in touch with her for a while. I hope she is doing well, but unfortunately, it saddens me to think of the terrible reality of MPP.

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