U.S. Federal District Court Judge Samuel Frederick Biery, Jr. - Western District of Texas

Hello, everybody, and welcome to another episode of Good Moir. I'm your non-lawyer opinion host, Steven Garcia. This is where I delve into the brilliant legal minds with the hopes of gripping yours. And folks, today, we have truly an honor with his honor, one of the most spectacular jurists out there today, and continues to work through with his own brand of justice for all. So without any further ado, ladies and gentlemen, please give me a hand in welcome to US Federal District Court of the Western District Executive Judge Fred Wary. Judge, welcome. Well, thank you. Good morning. Good morning. How are you today? Wonderful. I'm here at the new United States Court House looking up this wonderful window and view that I have overlooking the Jose Navarro Historic Site. And then to the right of that is the new downtown UTSA Cybersecurity Campus that's in the process. There's one building built, but there are, I think, two others that are to be built. So it's a pretty day. I can see the new frost tower and a big condominium apartment complex going up. That's about, I guess, 30 stories tall. Wow. The skyline of downtown San Antonio sure has changed over the years, hasn't it? Oh, indeed. When I was growing up, there was the tower life building. And the old original frost bank next to the San Fernando Cathedral. And the old Bear County Casa Colorado Courthouse, which was the only courthouse building. Now they're, I think, five. So yes, it has changed a lot in the last 70 years. How's the transition been going from the old courthouse, the Judge John Woods, the Federal Courthouse to the new one? Well, it went quite smoothly. We had a great team in house architect and planning team. And then, of course, the contractor who built the new courthouse, but the move went very smoothly. Well, that's good. And I understand, anyway, that security was one of the utmost priorities as far as the design of the entire building. Yes. That's very true. This is probably the safest place anybody could be. And of course, the unfortunate reality is that since John Wood was killed in 1979, there have been five or six other incidents where either federal judges or their families were killed. And they were all killed or, well, the incidents all happened at home. They didn't happen at the courthouse. So which confirms a fatalistic view that if someone wants to do something, they will find a way to do it. And you just have to be vigilant and hope for the best. That is just, you know, those are, I mean, really, those are the times we live in, unfortunately. Yes, indeed. So where do you come from? What's the story on Fritz Derry? Well, from where I'm standing, we lived about five miles north, a little bit northwest of here, basically around St. Mary's University neighborhood of Calabra Road and Benderer Road, the varsity drive-in was still there. One of the original gyms, Hamburg, or places was there at the triangle where Calabra goes to the left and Benderer goes to the right. Sure. So went to Madison Elementary, which was right up the street. And then Longfellow, Jr. High, and then Jefferson High School, and I had some wonderful coaches and teachers at all of those places. Then I went off to Texas Lutheran in St. Guine for four years, would hitchhike back in fourth son, or catch a ride with somebody that had a car, and then went to SMU Law School for three years, overlapped with some army-based training and reserved duty time for six years, came back here in 1973 to practice law with my father and uncle. And then in 1977 and 1978 did a campaign to run for a county courted law, Judship, which I was fortunate to have a lot of family and friends who helped them. We won that race, and then four years later I was unopposed to run for the 150th District Court and did that for six years, and then unopposed in 1988 to run for the fourth Court of Appeals, and was unopposed, and did that for six years, and then in 1994 President Clinton nominated me to the Federal bench, and we had two Republican Senators, Senator Graham and Senator Hutchison, and fortunately they okayed my confirmation, so I've been here now 30 years in this position. Wow, it only seems like yesterday, right? Oh yeah, our youngest, our oldest daughter has just turned 40, and I can remember when she was a day old, so. Yeah, that's a thing about children, you go to sleep one day, and next thing you do, you wake up and they're in college, you know, right, right, it's one of those things. So what, you know, going back to the time that you had there on the bench, what are in your opinion, some of the most, I guess, the prevalent case if it stand out in your mind. What would that be? Oh, there's a whole number of them at any given time, there are four district judges here, at any given time we each have about 200 civil cases and about 200 felony defendants, so there's always plenty of work, obviously a lot of that is volume, relatively routine on the criminal side, 98.7% of the defendants plead guilty in federal court, and on the civil side, 98% give or take of the civil cases, get disposed of on either motion practice or settlement, but obviously there are some that stick out in the mind, I guess the largest volume criminal case I had was about 25 years ago, and the defendant's name, nick name is Petro de Auro, which is just of gold, and he was one of the precursors of what we now think of as the cartels, and eventually the federal agencies working with the local agencies did a dragnet and put them out of business, of course the unfortunate reality is if one organization gets put out of business, the American people keep buying the drugs, anyway, and so another organization comes in to supply what the demand is for, but any rate in that particular case there were 120 defendants, and all of them plead guilty except for three, one being Petro de Auro and his two hitmen, one of whom, nick name was Baby Joe, and the other nick name was Raton, or in English, the rat, and Raton used a 45 caliber pistol to kill the people that he was directed to kill, and with a bullet in the back of the head was his modest operandi, but the other thing that was interesting about him back in the wild, wild west the gunslingers would put a notch in the handle of their gun for each of their kills, well Raton instead of doing that would have a tattoo, a line tattooed to his ankle, every time he would kill somebody, and he had 14 of those tattoos going up and down one of his legs, so anyway they both are all three were convicted, they are all three serving consecutive life sentences. The interesting thing is that Petro's son took over the Mexico part of the organization after his father went to prison, and then he himself was killed, so I'm not sure whatever happened to the rest of the family. On the civil side, years ago there was, as San Antonio grew, there was a horrible traffic back up at the corner of 281 North and 1604 for any of the listeners who are familiar with that can remember how long it took to get through that intersection, so the highway people planned and began construction on what I call the loop to loop the flyover at 281 and 1604, well that was met with a lawsuit by some conservation groups who wanted a full environmental impact study done before construction could start, well that would have taken another three years, and so I heard the case non-dury and on motion practice and wrote a lengthy opinion which ended up on the front page of the Wall Street Journal, because of the style of it in terms of quoting top culture things, and I'll get to that in a minute, but at any rate the bottom line is that construction was allowed to proceed much sooner than it would have otherwise, and so now we don't have near the traffic problem at that intersection that we did before that. On the other hand of course, 1604 I think will be under construction for the rest of eternity, but that's a whole another story, but getting back to the style of writing there are some cases which lend themselves to nontraditional legal writing, and for those of you who may have ever read any traditional legal writing you know how boring it is for the reader, and it also is boring for the for the judge who has to write it, so occasionally the case will come along that allows a little bit more creative writing, and that 281 1604 case was one of them, so then the other one of some fame or int for me had to do with the San Antonio City ordinance involving the ladies who dance at the so-called gentlemen's clubs, which basically could be used to be, I'm not sure now, but we're very much a front for drugs and prostitution, and the city passed an ordinance that required more clothing on these girls who worked there, and at any rate I wrote an opinion upholding the ordinance, and for those of you old enough to remember the 1960s music scene there was a song called the itsybixitini weenie yellow polka dotted bikini, that was the title of the article, or the order, and then there were some some double entendre puns sprinkled through the opinion which some people liked and some people didn't, so I enjoyed writing it, so I think the the Huffington Post actually painted as one of the funniest and most eloquent court documents that they've ever seen. Well, I did not know that, but I do remember the reporter asked the lawyer for the the strip clubs who of course they lost, and of course lawyers don't like to lose, and sometimes they'll criticize the judge if they lost, and so the reporter asked him, well what do you think about this opinion, and I guess hoping that the lawyer would criticize it or say something negative or whatever, and the lawyer, he is from Florida as I recall, anyway, he said, that's the funniest thing I have ever read. At any rate, and of course I've had other you know major criminal trials, one tragically, we have over the last 25 years while computers have been a blessing in some respects, they have also been a curse, because when I first started this career, we didn't know what child pornography was. There was no such thing, and if you wanted to see adult pornography, you had to order it through the mail, and it would come in a brown paper bag. Well of course computers opened up the Pandora's box to all of the first the legal pornography, the adult pornography, but then we began seeing the child pornography, and when we first began seeing that, they tended to be middle-aged, to older doctors, lawyers, who got involved in that stuff, and of course then the FBI and other law enforcement agencies began cracking down on it, and I had had a number of well-to-do people that I had to send off to prison, they lost their medical license, they lost their family, they lost standing in the community, and went to prison. Well my inference is that within that demographic those men finally got the message, and so we don't see that type of person anymore. Now we see two general types, 30, 40-year-old young men who are very computer-sami, but are very reclusive. All they do is be on their computers, they don't have a social life, they do the video games, and then tragically they get into this child pornography, and the other group that I haven't seen one for a while, but for a while we were seeing a number of them, or of young men from good families, highly ambitious, made good grades, athletes, and they would get started on regular pornography when they were 15 and 16 years old on their phones, and then that would deviate into child pornography when they were in college and in their early 20s, and of course just lost everything. I had two young men that were in law school, I allowed them to finish law school before they had to report to prison, but of course they never will be able to practice law with that kind of a felony conviction. I had another young man who was all everything academically and athletically. He was recruited by three of the four military academies for sports and academics, and Ivy League schools also recruited him. At any rate he got into child pornography and went off to prison for five years and of course lost all of those opportunities. I think I hope what's happened is that the word has gotten out about those kinds of cases and parents and teachers, I hope, are more vigilant about teaching these young men the dangers of that and the cost that will be paid. You talk about the things lost, families, the standing in the community and so forth, but one of the biggest things they lose on things like that or crimes of that nature is that they lose their souls. Oh yes, in fact this was not child pornography, this was real child sex, and it was one of those serendipitous moments for law enforcement. This little girl was 14 years old and she got into argument with her mother anyway, right away from home and got picked up by two pimps and they pimped her out for about three weeks before she finally realized she had gotten herself into some really deep trouble and she escaped and she went to law enforcement and the FBI got involved and she took law enforcement around to where she thought she had been pimped out but she said they were well to do neighborhoods and it was late at night and it was dark and of course she couldn't remember but she did remember that she had been taken to a hotel on 410 right across from North Star Mall and of course that was all lit up so she could recognize it and she had been taken there twice for the same man two nights in a row and she remembered the hotel room number and she remembered the guy's first name and so law enforcement followed up with the hotel and sure enough there was a man with that first name who was registered for those nights in that room number so they had a really strong lead well then they come to find out this fellow was on his way to being a general in the Army and he was at the Army War College working on his master's degree he was already a Colonel and and he had been his unit had been in Central America dealing with gang violence and and they were having an after-action conference here at this hotel so this was back in the days of the blackberry which we don't I don't think there is a blackberry anymore but it's like a smart phone and there was a service called the back page that used to be actually physically in the newspaper but it was kind of a wanted type section but it was for sexual matching dates some of it legitimate some of it prostitution at any rate this Colonel got on to this site and ordered up what turned out to be this little girl to be brought to his hotel room at midnight two nights in a row and of course she said there were sex acts on this guy could have been a movie star in terms of his handsome good looks and but he could have gone to a bar and and picked up an adult woman in a New York minute but instead he ordered up this little girl well he had a wonderful family back up in the northeast wife who was drop dead gorgeous herself and of course he just could not bring himself to admit that he had done this and the other another irony is that this hotel is located right next door to the pyramid building where the United States Attorney's Office is from which they prosecuted him at any rate he went to trial and his story was that he was working on his master's degree which is true and he was and it had to do with gang violence and young people which is true and he decided that while he was here he would expand his research into human trafficking of little girls which would wow of course the research was taking place in his hotel room at midnight two nights in a row and and and anyway the jury didn't buy it and so he was six months away from investing his military retirement so he lost he'd already done 19 and a half years so he lost all of that he's doing 15 years at Fort Dicks which is now a federal prison he's done about half of it I guess he appealed that was denied and ironically then he filed what's called a writ of habeas corpus alleging after the appeal alleging that he had poor legal representation so the Marshall Service brought him back we had a hearing and after the after he testified I asked him I said so I see that you're at Fort Dicks he said yes oh by the way this man speaks five languages he's he's brilliant and he said yeah I said well do they still have the red brick dormitory type barracks and he said yes I live in one of those I said well I I lived in one of those two and that's where I did my basic training and he said well that's interesting because that's where my father went to basic training also so wow what do you think what in your opinion what what goes south for people like that like you know he seemingly has everything going for him what you know what's that that that morning he gets up and say you know what I've got everything going for me I'm just gonna screw everything up well yes I think that's part of and by the way I'm sure that this was not his first little girl that he did people don't just wake up and decide well I think I'll order up before in your old girl correct so to answer your question I think it's two two possibilities one is I think the story we all know is a self-destructive subconscious impulse of the kind of Richard Nixon Richard Nixon had the whole world he's most powerful man in the world but he was so paranoid about losing all that political power that he then went to such extreme illegal means to hold on to it so there I think the psychologists say it's it's a I don't deserve all of this that I have and so therefore I'm going to screw it up it loses and then the other thing that I in these kind of cases there's a sexual addiction issue is my observation so by the way speaking of that years I tend to try to write creatively and find ways to express these concepts that lay people can understand and one of them is that there are three things that get people into federal court in trouble and they are either greed addiction or sex and the acronym for that so that you can remember is gas and yeah and I had a young man in court sitting on the back row waiting to be sentenced one time and and I was using that observation with the person I was sentencing and talked about greed addiction sex and and so finally this young man came up to be sentenced and I said you know you don't fit the profile you're from a good family and and you've never been in trouble before why are you here and he said well judge I had a bad case of gas wow I said well at least you were listening that is something I you know I wonder you know about things like that when you see it you see them on the news the headlines you you said wow this you know like the and I hope I'm not butchering his name like the I guess we can say alleged the attorney Murdole oh yes you know it's it's I you know what yeah he seemingly have it all right but what what I just I guess I can't have them the thought but it just makes you wonder well I think another factor is the people in that kind of powerful position who have had it all think that they're bullet and that they can get away with anything so right and and for a long time they do but eventually they get caught I had a young man a too long ago um from a good family went to Jefferson High School where I went that was in a management position at USAA for like 20 years and was was having a double life as a cocaine dealer and I went wow what he was what he had he had all kinds of fancy shoes and cars and uh fancy house something somebody could write a a TV movie so what um in you know in speaking of the various different types of cases what would you say uh in I guess in your opinion what would be the percentage that comes before you uh of cases it would be immigration related oh when I in San Antonio it's um certainly much more than say in Omaha Nebraska but sure but not near what it is in Del Rio or Laredo or El Paso Del Rio I used to hold court in Del Rio before we had a resident judge there and um this was before the caselo just exploded um the the first year that I took over that docket we had less than a hundred cases now that court gets two to three thousand cases a year wow anyway and most of those there in El Paso the border courts are um immigration related either smuggling illegal reentry uh drugs being brought in um and uh but here in San Antonio I would say it's probably I don't know 10 percent maybe 15 percent so now being how we're not technically we're not at border city no but what what we are is a crossroads of i10 and i35 which is the drug crossroads that comes out of the valley and so that's and and human smuggling of course we see these tragic cases of these people dying um in the back of these trailers so we get that the drugs and the human smuggling weapon charges illegal purchases being shipped to Mexico of weapons money laundering we're seeing more and more financial crimes one that I had few years ago that was in the newspaper a lot was um fellow named by the name of Tim Duncan that your listeners may remember who was sure a wonderful basketball player anyway he had a financial advisor and like so many people who are focused on being Johnny Carson or focused on being Bob Hope or focused on being Tim Duncan they turn over their financial lives to an advisor and in those three instances they all got took um fortunately for mr. Duncan the defendant in that case um had assets and and and pled guilty and uh mr. Duncan was able to recover seven million dollars which in the criminal case that was the number that was involved I think there may have been more lost that was in the civil side but of course I wasn't involved in that but at any rate mr. Duncan recovered seven million dollars which is very rare in those kinds of fraudulent transactions because most of the time the money has already been spent by the time somebody gets caught so sure sure you know and it it's it's it's a shame though uh but these people like Tim Duncan uh great people uh you know put all this trust and faith and people they think you know they can trust and then just wind it like as you said you know being had yeah what he's painful in fact Tim Duncan gave a victim impact statement at the sentencing hearing and so this the defendant had to stand there and and listen to Duncan and and one of the things that stood out he said I trusted you and and and um now think he said towards to the effect that it's hard for me to trust anybody anymore and right and I'm sure that's true uh it it destroys your faith and humanity so it reminds me of uh a I guess it's a quote from you that I uh have that I came across it says better to know oneself at 40 than at 75 but it's never too late to start over right you know and it was a uh I think an article you did on uh a personal story of failure in mental health right yeah tell me a little bit about that well I have I have been terribly successful in academics, basketball, politics, judicial career and so forth um but I have not been successful in male-female relationships um which interestingly uh in between one of those I realized that I wasn't getting any younger and I really wanted to have a family so I adopted a baby girl who is now 40 years old she was a day old when she came home and I raised her as a single father for five or six years and then remarried uh we adopted another baby uh who's now 33 years old who just gave us our third granddaughter congratulations yeah um this this one lives in Hawaii so it's not gonna be as easy to see her but um but but I'll figure out a way so yes of course you know uh since so um um some of this is family childhood stuff that we don't have time to go into but at any rate I realized early on that I there's something wrong with my inability to maintain a relationship so I started to counseling therapeutic process years ago um and learned a lot about in my case the mother-son relationship and what was going on with my parents when I was a baby and uh my father's psychological issues and all of that stuff that makes us who we are uh sure and so got through all that thought I understood all of it and I think I did intellectually but I'm not sure I ever incorporated it emotionally and applied it to a real relationship as opposed to a superficial relationship and so I had been in one of the latter of the superficial kind for 15 years um and finally she realized that I was not going to marry her she finally laughed well then I I went into an emotional dive and the abandoned little boy part of me um and and finally I said you know I'm gonna get some help so that's when I went back into a therapeutic relationship and um which is the basis of that story that you mentioned well that that is uh that's amazing and uh you know that's you know I I don't think enough can be said about therapy uh for you know for folks that are going through issues and you know it there's no shame in saying hey you know what we don't have all the answers right um you know it's there's avenues and there's uh resources out there for help well and and one of the motivations for including that that I wrote in that larger article is that it was it's being read it's already been published um by several thousand young lawyers and my hope is that that they will read that and say because I of course I read because I read so much nowadays about the stress that these young lawyers are under uh especially in the big law firms but anyhow um and the the general stress of our you got to succeed society um everything that's going on and I think they probably have more on their plates than we did I you know when I was 35 years old I never felt I mean I was ambitious and worked hard and all of that but I didn't I would never have called it stress so right and I think you alluded to uh that up until more recent history a lot of that stuff had a stigma to it so you if which was my father's case um you didn't talk about it and correct my sister and I didn't know anything about our father's psychological issues until we were until I was 40 years old and and he had a psychiatric breakdown um and and then overcame it um with therapy again he had been in therapy for years and quit and then then then now of course the fact that they had the psychiatric medication also had any rate I think back on that and I think you know if I had known about all of that when I was 20 and beginning relationships things might have been different um so I think the transparency just you know there are no don't try to keep it secret because you you're not going to succeed anyway it will all come out absolutely you know the uh the great Phil Jackson once said or has said basketball is a metaphor for life and life isn't for for basketball what do you think about that oh absolutely well and I would I would say sports generally a colleague of mine who was in the United States Congress political colleague had also been one of my uh the opposing coaches in a different school from when I was growing up and he and I talked several times about how athletics was the great training ground for politics because you learn in athletics you're not going to win every game and you're going to get knocked down and and then you've got to get up and go away at it again and you've got to focus and of course the same thing is in politics um and so if you're if you don't have that mindset then you better not get into politics you better not get out of bed yeah yeah yeah well I tell you what judge it has been a true honor having you on today it uh I I actually really want to continue the conversation uh with you uh in the very near future and I'd like to extend an open invitation to you uh for this podcast anytime you want to come on you're more than welcome well I appreciate that it's been very enjoyable this is the first time I've ever done a podcast so well I am honored to have you on uh believe me it's been a true honor having you on today and uh I know our listeners are gonna enjoy the conversation that we had and uh it's like I said I'd like to continue it in the future good well we'll be in touch okay judge having great uh labor day weekend and uh have an enjoyable rest of your day all right thank you so much okay judge have a good one bye bye