April 23, 2014

Two Devastating Child Pornography Cases – One Arrest, One Sentencing

If you've been arrested for a child pornography possession or solicitation in Florida, you know how seriously law enforcement is taking your situation.

It’s useful to understand how the legal process works -- i.e. what happens to people arrested for similar crimes, what defenses tend to work and tend to fail, and what sentences typically are.

To that end, let's examine two relevant pieces of breaking news:

Item #1: FBI on the Hunt for Man in Child Pornography Tape

The FBI is searching for a man who allegedly engaged in sexually explicit activities with a boy on a video. The FBI found the video in November 2012, after the agency conducted a raid at the home of a suspected pornographer in San Francisco. Although authorities arrested and prosecuted the original suspect, they found a video showing another man in the act of engaging in sexual relations with a minor.

FBI Special Agent, Karen Jurden, said “suspects who show their faces in child pornography are not typical … it is our hope that someone will recognize this individual and come forward. We were able to recover a very clear image of John Doe 28.”

The FBI believes "John Doe 28" was a U.S. citizen because of how he pronounced the word “careful” in the video. At the time of the shoot, he was in his late 30s or 40s. He was a balding Caucasian man with glasses. The FBI is making a full court press to find the suspect.

Man Convicted of Pornography Charges Sentenced to Nearly 6 Decades Behind Bars

Meanwhile, at the other hand of the “lifecycle” of the typical child pornography case… a man out in Boone County just received a 56.5 year jail sentence, after he was convicted of multiple counts of producing child pornography. Prosecutors charged 37-year-old Daniel Alan Jines with 15 counts of producing child pornography, as well as counts of receiving and possessing it.

Per case documents, Jines: “persuaded, induced and coerced [a girl] to engage in sexually explicit activity, which Jines then recorded.” The girl was only 10-years-old, when Jines' productions began, and he forced her to participate until she was 13. Astonishingly, some of his alleged child pornography featured infants and toddlers.

Gary Hartwig, a special agent for Homeland Security Investigations, said: “Daniel Jines inflicted permanent psychological, physical, and emotional scars on his young victim and deserves to spend the rest of his life in prison where he can never hurt another child.”

For help understanding the dynamics of your Florida criminal charges, call Seltzer Law at 1-888-THE-DEFENSE (888-843-3333) for a free and confidential consultation.

March 31, 2014

Rebuilding Your Life, Career, and Relationships After Being Charged with a Florida Crime

Whether police busted you for possession of marijuana with intent to sell; or authorities are investigating you for fraud, conspiracy and international computer crimes, your world has turned upside down because of your Florida criminal charge. You know that you have a big fight on your hands in the months (possibly years) ahead.

Many defendants in similar situations struggle to understand what they need to do, when they need to do it, and why. As a result, they become almost entirely focused on managing the charges and dealing with immediate next steps.

However, it’s helpful to take a step back and think about the “long game” as well.

After all, the whole point of fighting aggressively against your criminal charges is so that you can restore your life and build to something better -- something more hopeful.

For instance, you may want to build a business, restore a relationship or just do something good for society. Maybe you'd like to experience peace and relaxation after years of working at a breakneck pace.

So how can you regain a sense of control?

The first step is to get very clear about your current reality.

• What charges do you face?
• What are the potential punishments for those charges?
• What are the possible defenses available to you?
• What should you be doing now to prepare your defense?
• What other challenges (related to your defense or not) must you address ASAP?

The second step involves figuring out your ideal end goal.

Pick a point in the future – months or years down the road. Imagine your life from a perspective of “this turned out great.” Don’t edit yourself. Allow yourself to dream big. Imagine all the wonderful opportunities that might come your way, including how your criminal case might ideally turn out.

Once you’ve gotten very clear on these two steps -- your actual starting point and your ideal finish line -- all that remains is to connect the dots. In other words, your goal then becomes to find the most effective, efficient strategies to get from where you are now to where you want to be.

Of course, this process is easier said than done.

The good news is that you can get help with the journey. Call the team here at Seltzer Law, PA, at 1-888-THE-DEFENSE (888-843-3333) for astute, effective guidance. We are available 24 hours a day, 7 days a week to take your call and provide a free consultation about your Florida crime defense.

March 17, 2014

Florida Supreme Court Affirms Lower Court’s Denial of Relief in Execution Case: A Look at Howell v. State

Paul Augustus Howell, a man convicted of a Florida crime of killing a highway patrol trooper in 1998, recently appealed his death sentence to the Florida Supreme Court. The Court affirmed the lower court’s denial of relief, paving the way for his execution.

Howell had been convicted of first degree murder, after he killed a Florida trooper with a homemade bomb (that he had built, incidentally, to kill a witness in a trial). The bomb went off before it reached its target, killing the officer, instead. Howell appealed for post conviction relief, per Florida Rule of Criminal Procedure 3.851. He challenged the protocol for lethal injection in Florida. In his appeal, he raised several points:

• Florida recently changed its protocol for lethal injection, using a compound known called vecuronium bromide. Howell argued that the State violated the Eighth Amendment by including the drug Midazolam in its protocol.
• He also said that using three drugs in the lethal injection cocktail (instead of just one) violated the Eighth Amendment.
• He argued that using vecuronium bromide in the mix violated both the Eighth and Fourteenth Amendments.
• He took issue with the fact that State has been changing up its legal injection protocol, arguing that this general pace of change, in and of itself, violated the Eighth Amendment.
• He argued that his motions for post conviction discovery should not have been denied -- in other words, that the post conviction court made an error.
• He tried to strike testimony from Dr. Mark Dershwitz, a witness called by the State.

Unfortunately for Howell, all his arguments fell on deaf ears, legally speaking. The Court affirmed the denial of relief. First of all, the Court said that it was not impressed by his Eighth Amendment challenges to the lethal injection protocol, in general. Secondly, the Court found that the Eighth Amendment would not be violated by the use of Midazolam. Third, the Supreme Court didn't buy his argument that a previous case, Sell v. United States, precluded the use of vecuronium bromide, per the Fourteenth Amendment. Finally, the Supreme Court did not buy the argument that the testimony of Dr. Dershwitz should have been striked.

So what can Howell v. State teach us?

First of all, when a defendant faces a serious penalty, like capital punishment, options do abound to protest legally. However, those options are not unlimited. Secondly, although the application of capital punishment can take a while, you cannot delay the punishment indefinitely – in this case, it took the justice system over 15 years to kill Howell, after he had been convicted of first degree murder.

For help constructing an effective Florida criminal defense, talk to the team here at Seltzer Law, PA at 1-888-THE-DEFENSE (888-843-3333). We are available 24 hours a day, 7 days a week to help you understand your charges and prepare a stiff defense.

March 3, 2014

United States v. Isnadin: Undercover Agent Told Men "You Got to **** Rob Them, Bro" -- Was It Entrapment?

The case of United States v. Isnadin has many in the Florida criminal defense community talking about the definition of entrapment. Here's the thrust. An undercover agent for ATF offered two appellants -- Jolens “Blunt” Cius and Kamensky Gustama -- a curious opportunity. Would they want to rob a stash house? If so, warned the agent, they better be prepared for battle. In the agent's words: "You got to **** rob them, bro."

Was that entrapment?

Cius, Gustama and Esnel Isnadin (a co-appellant) argued that they had been entrapped, and they appealed their case to Florida’s 11th Circuit on February 14, 2014 to challenge a lower court’s previous conviction.

Isnadin had been convicted on multiple criminal counts in March 2012, after he and the other men attempted to rob a stash house after chatting with an undercover Alcohol Tobacco & Firearms agent.

Isnadin’s Charges

Prosecutors charged Isnadin with conspiracy to commit an offense known as a Hobbs Act robbery as well as conspiracy to possess with intent to distribute five kilograms or more of cocaine; conspiracy to use and carry a firearm in relation to a violent crime; and one count of being a felon in possession of a firearm.

In March 2012, the District Court found Isnadin guilty of a reduced cocaine possession and intent to distribute charge as well as guilty of the other three charges listed above.

Isnadin Appeals Conviction

Isnadin and co-appellants challenged the ruling, claiming entrapment. The trio also challenged the court’s decision to instruct the jury to treat the “entrapment defense separately and individually as to each count.”

The United States Court of Appeals concluded that the District Court “did not abuse its discretion when it instructed the jury to consider entrapment separately as to each count” and also found that sufficient evidence supported the initial convictions.

Per court testimony, Isnadin had only been present on the last day of the situation in question. But the court believed that he fully intended to commit a crime using a firearm.

Do you need help constructing a thorough, strategic defense to Florida criminal charges? Connect with the Seltzer Law PA team now at 1-888-THE-DEFENSE (888-843-3333) to speak with someone immediately about your case for free and in confidence. There's no need to be overwhelmed or under-informed. We can help.

February 17, 2014

Major Florida Crime Case: Lab Tech Arrested, Accused of Grand Theft and Selling Drug Evidence

On February 4, authorities arrested Joseph Graves, a lab chemist at a Florida criminal lab, and hit him with a suite of serious charges, including grand theft, drug trafficking (9 counts), and tampering with evidence (12 counts).

The Florida Department of Law Enforcement (FDLE) says that Graves stole drug evidence from his lab, then sold it. FDLE Commissioner, Gerald Bailey, remarked that “the actions of Joseph Graves are disgraceful.” A judge set his bail at $290,000, and he's being held at the Escambia County Jail. Authorities may hit him with additional charges.

A Florida Department of Law Enforcement spokesperson told the media that Graves had worked for 80 different law enforcement law agencies across Florida (35 counties) and had been involved in 2,600 cases over the past eight years. Authorities believe that Graves’ crime could, according to CNN, “affect… drug convictions in dozens of Florida counties.”

What exactly happened? And what are the implications for defendants in those cases?

Investigators discovered pain pill bottles in the Escambia County Sheriff’s Office evidence room. Over-the-counter meds had replaced missing pain pills. Investigators analyzed the situation and concluded that Graves had tampered with evidence. Florida police now must scrutinize literally thousands of drug cases; hundreds of convictions could be tossed across the state. At a press conference, Gerald Bailey admitted: “this has the potential of impacting hundreds of drug cases across our state … this is a total shock and a disappointment."

The allegations against Graves are not unprecedented. The Christian Science Monitor reported on a similar case in Boston recently. That case led to the release of 350 people from jail in Massachusetts. Per the CSM: “Massachusetts chemist, Annie Dookhan – portrayed in court as an ambitious young woman whose zeal to get ahead let her to produce bogus test results to help win convictions -- had processed more than 40,000 drug cases, putting the outcomes of all of them in doubt.”

This story powerfully illustrates how important it is to investigate your Florida criminal charges aggressively. You must make sure that evidentiary tampering, mechanical errors, other mishaps will not lead to an extravagant prison sentence for no good reason. Connect with the team here at David Seltzer P.A. at 1 888-THE-DEFENSE (888-843-3333) immediately for help constructing an articulate, strategic defense against any charges you may face.

February 3, 2014

Florida Supreme Court Roundup: A Look at Lockhart v. Crews and Florida Parole Commission v. Taylor

The Florida Supreme Court has had a busy start to 2014. Today, we'll analyze two recent Florida criminal cases that came before the Court in January: Lockhart v. Crews and Florida Parole Commission v. Taylor.

In Lockhart, the defendant had been sentenced to a 30 year jail sentence, after a lower court convicted him of robbery. The petitioner appealed the sentence to the Court of Appeals, which affirmed the guilty judgment; he then filed several additional post-conviction claims. [By “several,” we mean more than two dozen!] His twenty seventh petition for review had to do with a writ of habeas corpus issue. The lower court dismissed this petition – citing the case of Baker v. State – and also put him in a tough corner. Frustrated with his abuse of the system, the court ordered Lockhart to show why he should not be barred from making additional “pro se” filings regarding this case. Instead of filing a response, he submitted handwritten “motions,” which he had used (unsuccessfully) during previous appeals. The Supreme Court wrote: "After considering Lockhart’s response, we conclude that it fails to show cause why sanctions should not be imposed. We further conclude that Lockhart’s procedurally barred petition filed in this case is a frivolous proceeding brought before this Court by a state prisoner."

Here's the big lesson to be learned: you absolutely should pursue an aggressive, even dogged, defense against your Florida criminal charges… but you need to do so intelligently and strategically. If you waste the Court’s time or challenge a charge or conviction based on dubious logic or a lazy reading of the law, you may not like the results, and the court can even penalize you.

The Supreme Court also took up the case of Florida Parole Commission v. Taylor in January. In that case, a man violated the conditional release of his parole, prompting his Parole Examiner to recommend that respondent be put back on regular supervision. The Florida Parole Commission (FPC) felt that this suggestion was too lenient and chose to revoke the respondent’s conditional release. During subsequent legal wrangling, the respondent argued that the FPC did not adhere to Florida’s Administrative Procedure Act, when it failed to follow the recommendation of the Parole examiner. The District Court allowed the petition, but the Supreme Court said, effectively, "not so fast." The First District Court should not have granted certiorari because the Circuit Court's original decision did not cause a miscarriage of justice.

Florida Parole Commission v. Taylor demonstrates nicely how complex Florida criminal cases can get. Consider all the stakeholders and decision makers involved, which included: the respondent, the Parole Examiner, the FPC, the Circuit Court, the District Court and the Supreme Court.

To protect your rights, connect with a Florida criminal defense attorney here at Seltzer Law, P.A., at 1-888-THE-DEFENSE (1-888-843-3333), or email us to schedule your consultation now. We are available 24/7 to discuss your matter.

January 20, 2014

Federal Judge in Florida Decisively Rejects Drug Testing for TANF Participants – Lessons from Lebron v. Wilkins

Should it be a crime in Florida to be poor?

As Florida rang in the New Year, U.S. District Judge, Mary Stenson Scriven, issued a 30-page order rejecting the state’s drug test requirements for TANF (Temporary Assistance for Needy Families) program participants.

Last February, the 11th Circuit Court of Appeals made it clear that it was less than pleased with the state's law by issuing an injunction. The 11th Circuit's ruling was long overdue: suspicionless drug testing -- mandatory for TANF program participants -- clearly has created needless obstacles for poor people desperate for a break.

Consider one salient (and sad) example, the case of Lebron v. Wilkins. In the summer of 2011, a 35-year-old FSU student -- who needed to care for a 4-year-old child and a disabled mother -- was thrown to the jaws of the bureaucracy. His fight for Temporary Assistance became a rallying point for opponents of mandatory suspicionless drug testing, who have argued that such laws effectively criminalize the act of being poor.

What's the basic concern that lawmakers had when they crafted this law?

Their worry was that funds might be diverted from Temporary Assistance programs and funneled into illegal operations that could, ultimately, undermine public health and public safety. On the surface, this sounds like a noble, understandable quest.

The state justified its desire for suspicionless drug testing of TANF candidates on the following grounds:

• TANF candidates need to be job-ready -- if they're hooked on drugs, they won't be;
• The TANF program's output should be used to promote family stability and help children;
• The state needs to protect the use of public funds -- that is, to ensure they're being used properly and effectively.

Both Judge Scriven -- and the (uber conservative) 11th Circuit before her -- found flaws with the state's case. Here's a telling quote from the 11th Circuit’s injunction: “The only pertinent inquiry is whether there is a substantial special need for mandatory, suspicionless drug testing of TANF… we conclude that… the answer… is 'no.'"

In fact, a 1998 study actually found that TANF recipients were less likely than average Floridians to use drugs. Such evidence would seem to smash apart the fundamental premise of the law. Yet despite this evidence (and evidence like it), 29 states around the country have introduced similar laws, which, some might argue, effectively make being poor akin to committing a criminal offense.

Who needs good evidence, such as the 1998 study, when there's a compelling (albeit flawed) story to tell?

Keep scanning the news headlines, as other, similar cases wind up before federal court.

For help coming to terms with your charges, connect with a Florida criminal defense attorney here at Seltzer Law, PA, at 1-888-THE-DEFENSE (888-843-3333) for a free consultation, or email our team now.

January 7, 2014

Convicted South Florida Ponzi Schemer, Scott Rothstein, May Testify from Prison in Employee’s Trial… at a Cost of $20,000

Scott Rothstein -- a South Florida attorney convicted of spearheading a $1.2 billion Ponzi scheme that bilked insurance companies and investors throughout the state -- is poised to play a pivotal role in the upcoming February trial of a former employee, Christina Kitterman.

After being convicted of a Florida crime in 2009, Rothstein has been in the witness protection program while serving a 50-year federal prison sentence.

Kitterman stands accused of collaborating with Rothstein on the massive Ponzi scheme by impersonating an official from the Florida Bar, in order to con investors into believing that the state had prevented Rothstein from accessing their trust accounts. Per the prosecution, the case against Kitterman depends, in large part, on Rothstein’s emails and personal testimony.

Technical Challenges of Getting the Key Witness to Testify

Rothstein has told contradictory stories about what his associates did and did not know regarding his criminal enterprise. In his initial deposition, he said that no other lawyers at his firm knew what had been going on. He was acting alone. In a subsequent deposition, however, he claimed that Kitterman knew and aided the scheme by lying to investors.

According to Valentin Rodriguez, Kitterman’s lawyer, the allegations are false: “she worked for Mr. Rothstein and did what he asked her to do. She believed that whatever she was asked to do was truthful."

Since transporting Rothstein to the trial could be too cumbersome and complicated, the court is weighing whether to use a video conferencing link -- at a hefty price tag of $20,000 -- to allow Rothstein to testify.

The Case in Context: What Does It Mean for Your Florida Criminal Defense?

Consider the Rothstein-Kitterman case's broader implications. Very large scale crimes -- like Ponzi schemes, in which hundreds of millions or billions of dollars of assets change hands -- often spawn a diverse lot of smaller legal actions. For instance, after the scheme fizzled, the Rothstein Rosenfeldt Adler Law Firm’s bankruptcy trustee debated vigorously with prosecutors over who should get access to assets. Should the assets go to investors who were cheated out of large sums of money? Or should they go to the law firm’s creditors?

Over the summer, the 11th U.S. Circuit Court of Appeals weighed in and ruled that the government should not have seized multiple law firm bank accounts, because the accounts contained funds that had been legally obtained, and since those funds could not easily be disentangled from the proceeds collected from the criminal activities. Citing a previous, similar ruling, the court ruled that the funds could not be forfeited.

If you stand accused of a simple or complex Florida crime, connect today with the team here at Seltzer Law, P.A., for a sympathetic, accurate and effective Florida criminal defense. Call us now at 1-888-THE-DEFENSE (1-888-843-3333), or connect with the team online today to schedule a free and confidential consultation.


December 25, 2013

Eleventh Circuit Rules Prisoner’s Habeas Motion Was Timely and Should Be Considered – Kearse v. Florida Dept. of Corrections

For people already serving time on criminal charges, a petition for habeas corpus is an important tool for getting the courts to take a second look. A habeas corpus petition asks the court to release a prisoner because a serious mistake was made during his or her initial trial. They are rarely granted, but they can be vital in cases of serious problems, such as ineffective assistance of counsel or prosecutorial misconduct. And because everyone is entitled to due process of law, petitioners are free to appeal denials up to the appeals courts, which is what happened with Kearse v. Secretary, Florida Department of Corrections. Billy Leon Kearse had been to the Eleventh U.S. Circuit Court of Appeals before, after a trial court found his petition was improperly filed. The trial court denied his petition on remand, but the Eleventh found that the petition was not time-barred and Kearse could make his case.

Kearse was convicted and sentenced to death for a first-degree murder and armed robbery that took place in 1991. He had prior appeals to the Florida Supreme Court and the U.S. Supreme Court, which declined the case in 2001. He then began pursuing a habeas corpus petition, which has a statute of limitations—a deadline by which he must sue. As a result, a controversy arose over when Kearse filed his first post-conviction motion with the state. He sent his first papers to the court on September 27, 2001; the court dismissed it for lack of including an oath in November of that year. Florida Supreme Court ultimately heard second and third motions, denying relief most recently in May of 2009. He then filed the instant petition for habeas corpus, whose one-year statute of limitations is tolled while properly filed state motions are pending. The district court denied relief, saying Kearse’s initial motion was not properly filed, but the Eleventh, in a previous hearing, said Kearse should have the right to rebut that. On remand, the district court again denied relief.

The Eleventh reviewed for—and found—clear error in the district court’s determination that Kearse hadn’t proven the initial motion was properly filed. In essence, the appeals court found that the original state trial court erred when it said Kearse failed to include the required oath with his initial petition. Kearse filed a verification with his motion that was entered into the record as the same document; it is clearly in the record, the Eleventh said. Indeed, the court observed, “it is difficult to imagine stronger evidence than the actual state court record on appeal and the language of the Verification itself.” Though the appeals court generally defers to state-court findings, it said, it cannot let this one stand. Thus, the court found that Kearse had rebutted the presumption of state-court correctness. It sent the case back to district court for a hearing on the merits.

In my experience, courts sometimes don’t treat post-conviction motions from people with serious criminal convictions seriously enough. That might be because so many prisoners file these petitions, with or without any merit. But as this case shows, some petitions are meritorious, because sometimes, courts really do make mistakes. And when the mistake lands someone in prison on a very serious sentence like Kearse’s, it’s important for the court to listen closely. An experienced criminal defense lawyer like the ones at Seltzer Law, P.A. can help defendants make their best cases to avoid a conviction and lay the groundwork for appeals.

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December 11, 2013

Eleventh Circuit Denies Resentencing Without Armed Career Criminal Enhancement – Garcia v. Warden

“Tough on crime” sentence enhancements sound good to voters, which is why politicians often propose them. But in practice, they can turn a relatively minor crime into a crime for which the defendant can do years of time. That was true for Daniel Garcia, who was sentenced under the Armed Career Criminal Act to more than 27 years in prison for possession of a firearm after a felony. Garcia was sentenced in 1999, and brought unsuccessful post-conviction motions before the appeal in Garcia v. Warden, in which he asks the court to resentence him without the ACCA enhancement. The petition argues that the sentencing court incorrectly relied on police reports to establish the prior convictions supporting the ACCA enhancement, in violation of the U.S. Supreme Court’s 2005 decision in Shepard v. United States. The Eleventh U.S. Circuit Court of Appeals denied relief.

Garcia was convicted of stealing a firearm and possession of a firearm by a convicted felon. The Eleventh Circuit did not review the details of his conviction, possibly because it had already affirmed the conviction and sentence on direct appeal. The 1999 conviction resulted in a sentence of 327 months in prison for the felon-in-possession conviction and a concurrent 120-month sentence for the stolen firearm. The conviction and sentence were affirmed in 2000, and Garcia then sought relief, arguing that his counsel had been ineffective by not arguing against the ACCA enhancement. The Eleventh circuit affirmed that denial in 2004. Then, without obtaining leave to file, Garcia petitioned for habeas corpus, arguing that the sentencing court had incorrectly relied on police reports to establish his three priors for the ACCA enhancement, in violation of Shepard. The district court dismissed for lack of jurisdiction, saying Garcia had not made the requisite showing to invoke the Savings Clause, which would permit the new petition after his ineffective assistance claim had been heard.

In his appeal, Garcia argued that he was eligible under the Savings Clause for the new hearing because of Shepard, decided after his ineffective assistance petition. He also argued that that case and another show that his ACCA enhancement was a conviction for a nonexistent offense. To decide whether Garcia should proceed, the Eleventh Circuit said, it must apply a three-part test laid down on Wofford v. Scott: the claim must be based on a Supreme Court decision that can be applied retroactively; the decision must show that he was convicted of a nonexistent offense; and circuit law must have foreclosed the claim at the time when he should have brought it. The Eleventh found that Garcia’s claim did not meet the first prong: Shepard does not apply retroactively. Neither the Supreme Court nor the Eleventh itself has said it does, and the general rule is that decisions don’t apply retroactively unless certain standards are met. They are not met here, the court said. Also, the court said, prior of its own cases show that the Savings Clause does not apply in this situation. It affirmed the district court.

I wish appeals courts would look more closely at the underlying problems with sentences like Garcia’s. He is serving 27 years for a possession crime, largely because he had a prior criminal record (apparently) allowing the court to apply the ACCA. That may be legal, but it’s worth questioning whether sentence enhancements like these serve society. Rather than attempting to rehabilitate defendants, our system has chosen to warehouse them in prisons instead, at great cost to them, their loved ones and of course, the U.S. taxpayers. That issue was not before the court in this case, unfortunately. For people who are facing new criminal charges, one important lesson is that it’s vital to avoid felony convictions, because any future conviction is likely to carry severe penalties. That’s why people charged with serious crimes should get help from a criminal defense attorney as early as possible.

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November 27, 2013

Eleventh Circuit Upholds Verdict Reached Without Defendant Present at Trial – U.S. v. Sterling

Criminal defendants have a right to be present at their own trials. This is part of everyone’s Sixth Amendment rights, and it’s an important part of our country’s guarantee of a free and fair trial. In U.S. v. Sterling, defendant Ronn Sterling argued that his right to be present at his trial was violated when the judge removed him from the courtroom, citing repeated outbursts that may be connected to the “sovereign citizens” movement. After Sterling was convicted of bank robbery, possession of firearm by a felon and use of a firearm during a robbery, he asked the Eleventh U.S. Circuit Court of Appeals to overturn the convictions. He and an alleged accomplice, Cornell Brumfield, also argued that evidence of their prior convictions was not admissible. The Eleventh U.S. Circuit Court of Appeals rejected both arguments, saying Sterling voluntarily waived his right to be present.

Sterling was accused of robbing a bank at gunpoint; Brumfield allegedly drove the getaway car. Both men had prior convictions stemming from the same 1995 bank robbery in Oklahoma; evidence of these was admitted over their objections. Sterling participated in the pretrial hearing but refused to have anything to do with the trial; he agreed to speak to the judge in an interview room. There, the judge explained that Sterling had a right to be present but would be removed as disruptive if he kept interrupting. Sterling continued to say “I do not understand what’s going on. I do not accept no offers of the court,” causing the judge to remove him and deem him to have waived his right to be present. Sterling watched via live video feed but “remained non-responsive” and wouldn’t testify. They were found guilty in the end; Sterling got 562 months in prison and Brumfield got 363. The court denied Sterling’s motion for a new trial based on his removal from the courtroom. Both men appealed.

The Eleventh Circuit started by noting that Rule 43 of the Federal Rules of Criminal Procedure permits defendants to waive their right to be present after an initial appearance. Past decisions establish that the initial appearance can be at jury selection, before the trial has truly begun, the court said. The Eleventh also found that Sterling’s waiver of his right to be at trial was “voluntary” because he was repeatedly informed of the consequences of his repeated inappropriate remarks. The record shows that Sterling appeared to understand what was going on, the court said, and that he refused to respond to the court. Thus, the Eleventh concluded, Sterling “constructively waived” his right to be present. Indeed, Sterling repeatedly said he wanted no part of the trial. The court also ruled that both men’s prior convictions were properly included as evidence, saying the evidence’s probative value outweighed any prejudicial effect.

Whether a criminal defendant like Sterling waives his rights by being disruptive is an interesting and important issue. “Disruptive” is in the eye of the beholder, which means judges could abuse their power by deciding someone they don’t happen to like the looks of is disruptive. Waiving one’s constitutional right to be at trial must be voluntary, as the Eleventh pointed out—but Sterling would probably not agree that his “waiver” was voluntary. This is one reason why having an experienced attorney (and listening to that attorney’s advice) is so important. Even for defendants who don’t believe the court is legitimate, there’s value in working with someone who understands and knows how to use the system—because as Sterling’s sentence shows, criminal charges can land you in prison for decades.

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November 13, 2013

Florida Supreme Court Rules DUI Defendants Didn’t Adequately Subpoena Breathalyzer Codes – Ulloa v. CMI, Inc.

An ongoing issue for drunk driving defense attorneys is how exactly DUI defendants may confront the witnesses against them. This is difficult to do with a machine—and most alcohol-intoxicated driving cases are built around Breathalyzer test results. There’s also concern among DUI defendants and their attorneys that the machines, which are made by a private company, could be malfunctioning or intentionally over-sensitive in some way. As a result, numerous Florida defendants have sought the source codes of the Intoxilyzer 8000, a machine used by Florida police agencies, to assess the accuracy of their readings. In Ulloa v. CMI, Inc., the plaintiffs subpoenaed CMI—the Kentucky-based maker of the Intoxilyzer—for the source codes, but not for any employee’s testimony. The company challenged the subpoenas as incorrectly served, and the Fifth District Court of Appeal agreed. The Florida Supreme Court upheld that ruling.

DUI defendants Alejandro Ulloa, Eric Jackson and Bradley Leonard sought only the source codes of CMI’s Intoxilyzer. Two asked for the company’s custodian of records to bring the source codes to the defendant’s attorney’s office; one allowed them to be mailed in lieu of a personal appearance. All three threatened contempt of court for failure to appear. CMI moved to quash these subpoenas, saying that because CMI is a nonparty and has no offices in Florida, DUI defendants must follow the procedures outlined by the Uniform Law to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings. Florida trial courts lack power over nonparties outside Florida, and such nonparties are not provided for by Florida’s service of process statutes. The county court denied all the motions to quash; the circuit court consolidated all cases and denied as to the code-only subpoenas, but quashed as to those requesting employee testimony. The Fifth District found that all should be quashed.

The Florida Supreme Court took up the case because it conflicted with decisions from other district appeals courts. The issue, it observed, is whether a subpoena can be valid if it is served on an out-of-state corporation’s registered agent within Florida, to obtain out-of-state documents or witnesses from a non-party. The high court ultimately said no. A subpoena for a witness in a criminal case extends only to the state borders, it noted. The Uniform Law exists to permit states to subpoena each other’s citizens; it is reciprocal and requires courts to work together. This law clearly applies to witnesses, the Florida high court said. Applying Black’s Law Dictionary, the court decided that “to subpoena” also encompasses production of documents. This is consistent with a majority of other state Supreme Courts, the court said, and Florida’s version of the Uniform Law does not exclude documents. Finally, it noted, a different holding might make it impossible to compel production of documents. Thus, it approved the Fifth District’s decision.

This issue might seem small or technical, but it clarifies something that has become important to Floridians accused of intoxicated driving. These defendants are now able to compel the production of the CMI source code, something that could have been impossible if the court had felt compelled to rule that no procedure exists for this in Florida. Courts are therefore one step closer to considering whether the Intoxilyzer 8000 is accurate. That’s vital, because when the primary evidence of a crime comes from a machine, the defendant can and should demand to ensure that the machine is reliable. Breathalyzer manufacturers have resisted releasing this, calling it a trade secret, but no trade secret should trump a defendant’s constitutional rights.

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October 30, 2013

Eleventh Circuit Rules District Court May Hear Fair Sentencing Act Request – U.S. v. Hargrove

The federal Fair Sentencing Act addressed a situation that had long been seen as a problem: the disparity between sentences for crack cocaine crimes and powder cocaine crimes. The difference was perceived in some quarters as evidence of racial bias, because crack offenders were more often black and powder cocaine offenders were more often white. The 2010 law sought to reduce the disparity; in fact, it was the most successful of several bills stretching back into the 1990s, after the U.S. Sentencing Commission published a report saying the disparity was unjustified. It became effective about two years ago, and since then, prisoners sentenced for crack cocaine offenses have sought reductions in their sentences. U.S. v. Hargrove is one such case, arising from Central Florida. The district court ruled it didn’t have authority to consider the case, but the Eleventh U.S. Circuit Court of Appeals disagreed.

Nathaniel Hargrove was convicted of four counts of distributing crack cocaine. At the time, the sentencing guidelines called for a sentencing range of 100 to 125 months in prison, based on 16.4 grams of crack cocaine. But because he had a prior drug offense, he was subject to a mandatory minimum sentence of 120 months (10 years), yielding a sentencing range of 120 to 125 months. The district court then departed upward considerably from that range for reasons not explained here, ultimately giving him 240 months in prison (20 years). In 2012, Hargrove moved for a sentence reduction in the U.S. District Court for the Middle District of Florida. The district court declined to rule, saying it didn’t have the authority to consider the request because Hargrove’s sentence was based on a mandatory minimum.

The Eleventh Circuit disagreed. Courts may lower sentences when a retroactive amendment to the Guidelines results in a lower sentencing range. But a sentence reduction is not authorized when the amendment does not lower the applicable Guidelines range because of a mandatory minimum. After the Fair Sentencing Act, Hargrove’s initial Guidelines range would be 70 to 87 months in prison, down from 100 to 125 months. But Hargrove was subject to a statutory mandatory minimum of 120 months, the court noted. That results in a new Guidelines range of 120 months, it said—lowering the applicable Guidelines range, though not by much. The court expressed no opinion on whether Hargrove should be resentenced, but agreed that under the applicable statutes, he was eligible for resentencing. It remanded the case to district court to decide on the merits.

It would be interesting to know what the reasoning was behind the upward departure made by Hargrove’s original sentencing court. Recall that his final sentence was twenty years, twice the mandatory minimum, which is a dramatic difference. As a rule, this kind of upward departure in a criminal case generally results from exceptional facts or strong feelings from the judge, and can include inappropriate reasons like racism. It’s not clear whether such feelings played a role here, since the Eleventh Circuit doesn’t delve into the reasons for the upward departure. But drug crimes are already subject to onerous sentences, so an upward departure can be very serious indeed. As a result, more and more defendants like Hargrove may request new sentences.

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October 16, 2013

Florida High Court Rules Juveniles Cannot Be Denied Pretrial Release in Florida – Treacy v. Lamberti

Under Florida’s constitution, no criminal defendant can be denied pretrial release unless he or she is facing the death penalty or life without possibility of parole. That provision triggered an interesting decision from the Florida Supreme Court last week in Treacy v. Lamberti. Wayne Treacy is a juvenile charged as an adult in Broward County with attempted first-degree murder. He requested that the court set bond in his case, but the court denied it. On appeal, he argued that because the U.S. Supreme Court ruled in Graham v. Florida that juveniles cannot be sentenced to life without possibility of parole, the state constitution requires that he be released before trial. The Fourth District Court of Appeal disagreed, but the Florida Supreme Court quashed that decision and held that defendants in Tracy’s shoes are entitled to bond.

Treacy was 15 at the time of his arrest for attempted murder in March of 2010. In May of 2010, the U.S. Supreme Court held in Graham that no juvenile defendant may be sentenced to life without the possibility of parole. The next month, Treacy moved for the court to set bond, but the court denied this, saying his charge was “clearly an ‘offense punishable by life imprisonment’” and Graham didn’t change the statute with respect to his right to bond. He then petitioned the Fourth District Court of Appeal for a writ of habeas corpus. The court denied his petition without an opinion, but later granted a similar request. After Treacy renewed his request, the court denied it with an opinion, reasoning that the state Constitution considers how the offense is classified, not the ultimate penalty. It also said the issue could be avoided if the Legislature created parole for juveniles sentenced to life.

Treacy appealed to the Florida high court, which reversed the Fourth District. The court found no reason not to apply a plain reading of the state constitution, which says “unless charged with... an offense punishable by life imprisonment...” Floridians must be granted pretrial release. And the state concedes that under Florida’s current situation and Graham, Treacy cannot be punished by life imprisonment for attempted first-degree murder. Thus, he and others like him are eligible for pretrial release on conditions that reasonably protect the community, the Supreme Court said. It rejected the argument that the classification of the offense should guide the court rather than the available punishment, saying this is inconsistent with the plain language of the Florida constitution.

This case means juveniles accused of very serious crimes may now be released to their families before trial, which may be a relief to their families. Pretrial release doesn’t affect whether the juvenile will eventually be convicted of the crime, but it create a chance to spend time with loved ones and not with people who might do the juvenile harm, or teach him or her to continue a bad lifestyle. Juvenile detention is sometimes called “criminal finishing school”; the situation is likely even worse for juveniles charged as adults, as Treacy was, and held with adults. And judges are still free to set reasonable conditions on pretrial release for serious offenders, to help keep the public safe.

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October 9, 2013

Eleventh Circuit Vacates Financial Conviction Because Indictment Was Too Vague – U.S. v. Lang

Most Americans might not realize this, but banks are required to report transactions that exceed $10,000 per person per day. And it’s a financial crime to intentionally structure deposits to a bank to avoid meeting the reporting threshold; say, by making two deposits of $5,000 each. In United States v. Jerry Dwayne Lang, Lang was accused of 85 counts of structuring transactions to avoid this threshold, all of which stemmed from separate deposits of sub-$10,000 checks. Lang appealed his conviction on 70 of those counts, and the Eleventh Circuit ultimately agreed that the indictment incorrectly charged a crime for depositing each of the smaller checks. Depositing checks is not a crime; breaking a larger amount into smaller amounts is the crime, the Eleventh said. Because Lang’s indictment doesn’t sufficiently allege a crime, the court said, his conviction must be vacated and the case dismissed.

Lang’s indictment, appended to the opinion, shows that he cashed 85 checks at two different banks over about eight months. Each was below the $10,000 reporting threshold, but they totaled $636,529.61. (It’s not clear whether the checks stemmed from any other illegal activity; the opinion didn’t address that.) According to the Eleventh, the prosecution believes Lang’s 85 deposits represented 21 payments from the same source, which he had broken down into smaller amounts. However, the indictment accused Lang of “structuring” all 85 of the smaller transactions. Included in the indictment is an allegation that this was part of a pattern of illegal activity involving more than $100,000 in a year, an attempt to merit a sentence enhancement. The jury ultimately convicted him of 70 of the counts.

Lang appealed and the Eleventh Circuit reversed, finding that it is not possible to “structure” deposits of less than $10,000. As a result, the court said, the indictment was insufficient—so defective that it didn’t charge all elements of the offense for which he was convicted. The U.S. Supreme Court has explained that “structuring” means breaking up a single transaction above $10,000 into multiple smaller transactions in order to evade the reporting requirement. Two sister circuits have confronted the question of how to count the structuring crimes, the Eleventh noted, and both have ruled that the smaller deposits themselves are not themselves the crimes; the crimes are each of the larger payments that were broken up. The Eleventh agreed, saying it is impossible to structure a deposit of less than $10,000; it would also be unnecessary, as there would be no reporting requirement to evade. Because each count of an indictment must stand on its own, the court added, the indictment simply fails to plead any crime. It vacated the conviction and directed the court to dismiss the case.

Every defendant has a right to a sufficient indictment that sufficiently presents the essential elements of the offense, notifies him or her of the criminal charges to be defended, and does not leave him or her vulnerable to double jeopardy after a judgment is rendered. The Eleventh Circuit found that this indictment doesn’t meet standards because it simply fails to allege that Lang committed a crime. It doesn’t help prosecutors that they explained the situation in detail to the jury that convicted Lang; it’s vital that the indictment itself adequately charge him with a crime. As a result (and because there were no other charges against him), it looks as if he will be freed. Financial crimes are sometimes called white-collar crimes, but that doesn’t mean they carry light sentences. If you’re charged with this kind of crime, it’s still vital to have an experienced defense attorney on your side.

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October 2, 2013

Florida High Court Agrees That Juror Should Have Been Excused for Cause – Matarranz v. State

A lot of people see jury duty as an annoyance, but it’s also a very important job. Juries can send people to prison, which means they should be selected carefully. People with biases are typically excused from a jury panel, often after questioning from the attorneys or the judge about their feelings and past experiences. But sometimes, a juror slips through the cracks, or one side pushes to keep a juror it feels is biased toward the result it wants. In Matarranz v. State, the Florida Supreme Court ruled that a juror was not competent to serve on the panel that convicted Rafael Matarranz because she had demonstrated that she couldn’t be a fair and impartial arbiter of the case. The decision means Mararranz, who was convicted of burglary and first-degree murder, will get a new trial. It also clarified how jurors may be removed for cause in Florida.

Jury selection began normally, with the judge giving jurors an overview of procedures for criminal trials and of the charges against Matarranz. When the judge asked if anyone felt they could not be a fair juror after hearing the charges, the juror at issue raised her hand and said she had reservations about the burglary charge. She elaborated that her cousin had been wrongly convicted of fraud because he had been given a bogus check. She also said her family had been burgled when she was a child—her Christmas presents were stolen from under the tree—and it had affected her a lot. Under questioning, she seemed to waver between saying she could and couldn’t be impartial. The defense ultimately moved to strike her for cause, but the judge disallowed it and the defense used a peremptory challenge instead. A motion for an additional peremptory challenge, based on the inclusion of other jurors, was not granted. Matarranz was found guilty.

The Third District Court of Appeal affirmed the conviction, but wrote separately to find no manifest error by the judge in retaining this juror. Its decision conflicted with one by the Fourth District, Huber v. State, so the Florida Supreme Court granted review.

The high court started by finding that Matarranz’s objections were preserved sufficiently for review by the motion to strike her for cause. It then agreed that the juror should have been struck because she showed she couldn’t be objective. Any reasonable doubt as to the juror’s impartiality is adequate to excuse him or her for cause, according to past cases. Importantly, it said, assurances of impartiality the juror makes are not enough to defeat excusal. It’s fine for parties to engage prospective jurors in questioning to correct wrong ideas about the law or the justice system, the court said, but jurors cannot be “rehabilitated” by a few minutes of questioning when the problem is firmly held beliefs. In this case, the high court said, the trial court may even have “embarrassed” the juror into changing her mind about whether she could be impartial, after initial responses that concerned both sides. As a result, Matarranz did not get a fair trial, the court said, and should get a new one.

I am pleased to see this decision, because it has important implications for people facing serious criminal charges in Florida. Our Constitution requires fair and impartial juries. This is so important and fundamental that we have to follow it even if it means scrapping the prior trial and starting over. Otherwise, Florida prosecutors would be free to include all of the blatantly biased jurors they could get away with including, and the right to a jury trial would be undermined. As the Florida Supreme Court clarified here, this means casting a wide net when excluding jurors: excluding people who provide a basis for any reasonable doubt about their ability to be fair. This may seem like a high standard, but because juries send people to prison or sometimes order deaths, I believe the standard should be high.

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September 25, 2013

Florida High Court Rules Defendants Can ‘Burgle’ Dwellings Unfit for Occupation – Young v. State

Burglary of a dwelling is usually considered a more serious crime than burglary of a closed business. In a dwelling, it’s harder to predict when the victims might not be home—and if someone is home, the chances of a violent confrontation go up. That’s especially true if the accused is armed, which was the case in Young v. State, a decision of the Florida Supreme Court. Eric Young was convicted in Orange County (Orlando) with burglary of a dwelling with an assault with a dangerous weapon, robbery with a weapon and carjacking with a weapon. Young argued on appeal that his burglary conviction should be downgraded because the dwelling was not fit for occupation; the victim was installing drywall at the time of the crime. The Fifth District Court of Appeal disagreed, in a ruling that conflicted with other appellate courts. The Florida Supreme Court ultimately upheld the conviction.

In September of 2009, Young entered a building where the victim, a drywall contractor, was cutting drywall. While he was on the floor, the victim saw a man with a gun, Young, who ordered the victim to look away and then stole his wallet, keys and phone. After Young and an accomplice drove away in the victim’s pickup truck, the victim called 911 from a neighbor’s home. Two days later, officers saw Young run two stop signs in the stolen truck, tried to pull him over, and apprehended him after a chase. They then discovered that the truck was stolen. A jury convicted Young of the lesser included offenses of burglary of a dwelling with assault with a dangerous weapon; robbery with a weapon; and carjacking with a weapon. Young argued to the Fifth District that he cannot be convicted of burglary of an unoccupied dwelling. He was unsuccessful.

The Florida Supreme Court took up the case to resolve a conflict with a Second District decision. The high court started by saying Young didn’t preserve the issue well enough for appeal and the dispute is not one of fundamental error. However, the court said, his claim also fails on the merits. Florida law defines a dwelling as a structure with a roof that is designed to be occupied by people at night. Design or suitability for occupation controls this determination, the court said. The Second District decided that a “gutted” home could not be a dwelling under the statute because it was unsuitable for occupation. But the Supreme Court rejected this, saying there is no requirement that the building be habitable on the date of the offense; it is enough that it was intended for occupation. To hold otherwise would deny the protection of added penalties to anyone unlucky enough to be burgled during a renovation or period of disrepair, the court said.

The difference is not academic; burglary of a dwelling comes with a mandatory minimum of 21 months in state prison. These fine points of law truly matter when you’re accused of a serious crime, which is why it’s vital to get in touch with a Miami criminal defense attorney as early as possible in the process. I would have preferred a different outcome, because the logic behind increasing the penalties for burglary of a dwelling doesn’t apply when the “dwelling” is not only unoccupied, but clearly not currently being used as a dwelling. A violent confrontation can only take place if someone else is in the structure when the defendant arrives; a structure that is clearly unoccupied would not pose that problem. In addition, when no one lives in a structure, robbing it does not deprive anyone of a feeling of security.

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September 18, 2013

Eleventh Circuit Dismisses Appeals as Untimely Filed Before Prior Appeal Resolved – U.S. v. Diveroli

Felon in possession of a firearm is a criminal charge that commonly makes its way to the appellate courts. It’s a possession crime, which means it’s easy to prove; prosecutors don’t have to show intent or state of mind or anything other than the bare fact of possession. And because firearm possession is a Second Amendment right, defendants may not realize that a change in status to a convicted felon is adequate to take that right away. In United States v. Diveroli, Efraim Diveroli was convicted of receiving firearms during the time between his guilty plea to a conspiracy charge and his sentencing. He sought to dismiss the charging document, but he filed that motion after a direct appeal of his conviction and sentence. The district court denied it, but the Eleventh U.S. Circuit Court of Appeals ruled that it should have dismissed for lack of jurisdiction.

Diveroli, of the Middle District of Florida, was indicted on conspiracy charges in 2008. (The opinion doesn’t say what the conspiracy was for.) He pleaded guilty in 2009 and was sentenced 17 months later to four years in prison. He was free during the time between the plea and the sentencing, and used part of it to receive a shipment of semiautomatic weapons and ammunition from undercover agents. As a result, Diveroli was already a convicted felon before he received the guns. He pleaded guilty to the firearms charge in 2010, with a plea agreement that did not discuss sentencing enhancements for crimes committed on pretrial release, but that did expressly include a sentencing appeal waiver. When the presentencing report included such an enhancement, as well as one for having been near high-capacity magazines, he objected. He was sentenced to four years, two of which were intended to run concurrently with the conspiracy sentence.

Diveroli first appealed his conviction and sentence, arguing that he wasn’t told he would face the sentence enhancements before he agreed to the plea. After that appeal was filed and briefing began, but before a decision, Diveroli also moved to dismiss the charging document in trial court for an alleged defect. The district court at first dismissed that motion for lack of jurisdiction, because an appeal had begun, but reconsidered and dismissed on the merits. Diveroli appealed that decision.

During the pendency of this second appeal, the Eleventh Circuit ruled on and denied his first appeal. In the second appeal, the Eleventh took up the jurisdiction question first and never reached the merits. Though it’s settled that trial courts have no jurisdiction after an appeal, a defect in a charging document is so serious that appeals courts are required to take up the issue even if it’s raised for the first time on appeal or no party raises it, the Eleventh observed. Diveroli argued that the federal rules of criminal procedure allow parties to bring charging defect claims anytime while the case is pending, but the Eleventh held that this doesn’t extend to after an appeal. Prior cases say a case is no longer pending before the district court when it’s on appeal, the Eleventh observed, and practical considerations forbid dual jurisdiction. Thus, it reversed and remanded with instructions to dismiss the motion.

When you’re facing criminal charges, it’s vital to make sure your legal defense is strong, coordinated and experienced. It’s not clear what kind of legal advice Diveroli was getting, but an experienced attorney should be able to tell someone in Diveroli’s position that there are additional penalties for committing another crime while already out on pretrial release. In addition, an experienced lawyer should be able to raise objections at the proper time, preventing motions from being dismissed for lack of jurisdiction. No attorney can guarantee positive results, but having experience on your side should mean that your arguments are almost always heard on the merits, not dismissed as untimely or improper for technical reasons.

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September 11, 2013

Evidence From Search May Be Used Even If Search Was Illegal, Eleventh Rules – U.S. v. Bush

As a rule, if a search is ruled unconstitutional, the results of that search—whatever the police found—must not be used in court because it is “the fruit of a poisoned tree.” This helps defendants on occasion, because in order to penalize officers who violate defendants’ civil rights, courts are willing to throw out even the key evidence against those defendants. But in United States v. Bush, the Eleventh U.S. Circuit Court of Appeals declined to suppress evidence against Dennis Calvin Bush, Jr., saying that although the searches that produced it were violations of the Fourth Amendment, they fell under an exclusion. Bush was already a felon when he was found in possession of a firearm and possession of cocaine allegedly intended for sale. The Eleventh affirmed his conviction for those crimes, plus possession of a firearm in the furtherance of a drug crime and conspiracy to possess cocaine.

A sheriff’s office obtained a warrant to search the home of Kendra Stadmire in Panama City. Stadmire had been observed before to rent cars for trips between Panama City and “source cities” like Atlanta. Bush was one of Stadmire’s drivers for these rented cars. In April of 2011, a K-9 unit from the sheriff’s office sniffed the air around the house and indicated drugs nearby. That month, officers also placed a tracking device on Bush’s rental car, tracking him on alleged drug-buying runs. The next month, officers went through the home’s trash and found drugs and drug residue. On that basis, they got a search warrant. Inside the house, they found substantial marijuana, a small amount of cocaine, paraphernalia consistent with drug sales, two handguns and lots of cash. Bush moved to suppress the evidence from the tracking device, but the district court denied the motion, saying investigators relied in good faith on precedent from before a U.S. Supreme Court ruling forbidding warrantless tracking, the dog sniff was lawful, and enough other evidence supported the warrant to preserve the evidence.

Bush appealed those rulings to the Eleventh Circuit, but that court found no reason to suppress the evidence. Even if the dog sniff or the tracking device were unconstitutional, the court said, the independent source doctrine would permit admission of the evidence anyway. The court analyzed the search warrant and concluded that the it would likely have been granted even without the allegedly unconstitutional searches. Without the GPS device, the court said, officers would still have been able to cite the mileage on the rental cars, Bush’s history of drug offenses, activity at the house consistent with drug transactions, visitors with known drug records, and the trash pull. And nothing in the record shows that officers requested the warrant mainly because of the allegedly illegal searches, the court said. Indeed, one officer testified that he intentionally held back on a warrant because of concerns about the dog sniff, and the GPS device far from the most incriminating evidence, the Eleventh said. Thus, there was no need to bar admission of the fruits of the search.

Because drug crimes are frequently possession crimes—that is, just being caught with something is adequate to support a serious criminal charge—it’s common to see challenges to the legality of a search. In fact, both of the Supreme Court cases on which this appeal is based happened in drug cases; the dog sniff case was part of a drug case here in Miami-Dade County. While these restrictions may not be popular with law enforcement, they’re absolutely vital to protect the privacy of ordinary Americans. After all, if law enforcement is permitted to violate the Fourth Amendment without consequences, what would stop them from doing it routinely, just in case they happen to catch someone in a crime? That’s why I challenge potentially illegal searches any time my clients bring one to my attention.

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September 4, 2013

Florida Defendants May Not Be Convicted of Both Theft and Receiving Stolen Property – Williams v. State

In many criminal cases, defendants face multiple charges because prosecutors can often find more than one offense from the same conduct. But some criminal offenses can’t be stacked on top of one another in this way because the law forbids two convictions from the same conduct. By Florida law, one such pair of charges is theft and receiving stolen property. That was the basis for the appeal in Williams v. State, in which Melvin Williams appealed his conviction for both charges and the trial court’s subsequent decision to choose one of the charges. Over his defense attorney’s objections, the court declined to give the jury an instruction saying it could find him guilty of only one charge. Williams appealed to the Second District Court of Appeal and then to the Florida Supreme Court, where he ultimately won a ruling saying courts must give that instruction.

Williams broke into a private home and stole a digital camera, DVDs, two video game systems and several games. He pawned some of them for $40, leaving a fingerprint matching prints left at the home. He was charged with burglary, grand theft, dealing in stolen property and providing false information to a pawnbroker. Based on a Florida law that forbids conviction of the same defendant for both receiving stolen property and theft, Williams asked for a jury instruction saying jurors may convict on only one of the two charges. The judge declined to give this, angrily declaring on the record that there’s no adequate jury instruction on this and that the jury would get confused. Williams was convicted on all counts and the court dismissed the lesser conviction, grand theft. The Second District Court of Appeal affirmed, reasoning that courts have generally kept only the greater conviction.

Nonetheless, the appeals court certified questions to the Florida Supreme Court, which took up the case to decide if: 1) the trial court must instruct the jury about the Florida law when both theft and receiving stolen property are charged, and 2) defendants must be given new trials if there is no such instruction and they are convicted of both crimes. The high court noted that in a companion case, it had already decided no new trial was needed when the lesser conviction was reversed. But that defendant didn’t ask for a jury instruction, the Supreme Court noted. A prior case expressly says trial courts have an obligation to instruct on this law, the court said question. And the error was not harmless because the jury could have convicted on the lesser offense, it said. Thus, it answered yes to both questions and ordered a new trial.

It’s very interesting that Williams won a new trial with his appeal, but the defendant in the companion case did not get a new trial. This underscores the importance of properly instructing the jury. Because jurors in this case were not permitted to know that they couldn’t convict Williams of both grand theft and receiving stolen property, they couldn’t determine whether he should be convicted of the greater or the lesser charge. That is properly a job for a jury, as numerous courts have noted, rather than judges. One part of my job is to ensure that my clients’ right to a jury trial is respected in all appropriate respects, even those that might seem like tangential issues to prosecutors.

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August 21, 2013

Statutory Rape is Not a Violent Crime Supporting Career Offender Status, Eleventh Rules – Spencer v. U.S.

I’ve written here several times before about federal sentence enhancements for things like being an “armed career criminal” or a “career offender.” These statuses are used to get the defendant much more time in prison than he or she would otherwise get for the current offense. As a result, there’s a lot of controversy over whether specific offenses qualify the defendant for those statuses. In Spencer v. U.S., the Eleventh U.S. Circuit Court of Appeals made a rare ruling for the defendant in such a controversy. Kevin Spencer of Central Florida was originally in court for distributing crack cocaine, but he was sentenced to roughly double the typical sentence because he qualified as a “career offender” because of prior convictions for drugs and statutory rape. The Eleventh found that the statutory rape was not a crime of violence qualifying Spencer for career offender status.

Spencer was 18 when he was charged with both of his priors. One was possession of cocaine with intent to sell, which is undisputedly a crime qualifying him for career offender status. The other was a Florida felony child abuse charge stemming from sex with his 14-year-old girlfriend. (It is not disputed that the sex was voluntary.) Spencer pleaded guilty to child abuse as part of a plea bargain. The plea agreement provided little detail, but when Spencer was caught at age 21 with the crack cocaine, the judge sentenced him, over his objections, as a career offender, noting that this doubled the sentence. Spencer then directly appealed to the Eleventh Circuit, which rejected his first appeal. But afterward, the U.S. Supreme Court decided Begay v. U.S., which limited the “crime of violence” priors qualifying for a sentence enhancement to crimes similar to those enumerated in the statute. Spencer moved to set aside his sentence based on this, and appealed the trial court’s denial.

He had better luck with the Eleventh Circuit the second time around. The court first agreed that Spencer can make his case under 28 USC 2255, which permits courts to set aside unconstitutional or illegal sentences. It concluded that a sentencing error involving wrongful career offender status or similar status can create a miscarriage of justice, noting that career offender status substantially increases sentences. In so ruling, it disagreed with similar but not entirely alike cases from the Eighth and Seventh Circuits. The Eleventh then found that third-degree felony child abuse in Florida is not a crime of violence as envisioned by the career offender statute. The statute requires either physical or mental injury to the child, requiring the court to look to the record to determine whether there was physical injury. But the record is not helpful, the court said, so it treated the conviction as the least culpable crime under the statute, for mental injury. And this is not a crime of violence, the court noted. It vacated the trial court and remanded for resentencing.

This decision is good news for Florida defendants who have priors. Any time that I defend someone with one or more prior convictions, I look carefully to see whether the client is eligible for this kind of sentence enhancements. If so, defending the crime aggressively, or negotiating a plea to a lesser offense that wouldn’t trigger the enhancement, is absolutely vital. It’s also interesting to me that the Eleventh noted the cost of keeping Spencer in prison for another six-plus years. The financial cost is less important than the cause of justice, in my opinion as a criminal defense attorney, but it would be a powerful argument for sentencing reform here in Florida, if we were having such a debate.

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August 14, 2013

Eleventh Circuit Orders Acquittal Where Prosecution Failed to Prove Gun Sale Illegal – United States v. Fries

In every contested criminal case, the standard to convict someone is proof beyond a reasonable doubt that he or she committed the crime being prosecuted. My job as a criminal defense attorney is to point out when prosecutors have failed to do that—by finding problems with their proof, the way it was obtained, and other aspects of their cases. In U.S. v. Fries, the Eleventh U.S. Circuit Court of Appeals decided, unusually, that the prosecution simply failed to prove an essential element of the firearms crime that Theodore Stewart Fries was accused of. Fries sold a gun at a Tallahassee gun show to an undercover agent from the Bureau of Alcohol, Tobacco and Firearms. This violates a federal law banning interstate firearms sales unless one party to the sale is to a licensed dealer. The Eleventh ultimately agreed with Fries that the prosecution failed to prove that the agent was not a licensed dealer.

Fries was approached by ATF agents Donald Williams and William Visnovske at a 2009 gun show. Visnovske posed as a Georgia resident visiting the area and asked to buy a gun, but Fries refused because it’s illegal to sell to someone from out of state. He suggested that Williams, posing as a Florida resident, might like to buy the gun. Neither party mentioned whether they had a federal firearms license. The agents left, but tried again in April of 2010. That time, Fries did sell a gun to Visnovske, still posing as a Georgia resident. Again, there was no discussion of license status and no request for Visnovske’s ID. Fries was then federally charged with selling a gun to a nonresident who was not a licensed firearms dealer. At trial, there was no evidence presented about whether Visnovske was a licensed dealer, and the jury instructions omitted the license as an element the jury had to find proven. Fries was convicted.

Fries appealed, but his attorney moved to withdraw from the appeal, saying it was frivolous. The Eleventh Circuit denied that motion, ordering briefing on issues related to whether the licensing element of the crime was proven. Not surprisingly, Fries argued on appeal that it was not, so his conviction should be reversed or a new trial should be granted. Because Fries hadn’t made this argument in trial court, the Eleventh used a higher standard of reversal: only where reversal is necessary to avoid a manifest miscarriage of justice. Fortunately for Fries, the court did find it necessary. The statute requires proof that both parties not have federal firearms licenses. The Eleventh “comb[ed] the record” but failed to find any evidence at all about Visnovske’s license status. Thus, it reversed his conviction. A concurrence added that “it is not asking to much to expect a prosecutor… to ensure that all of the elements in [the indictment] are proven.”

I agree. No one should go to prison if the government did not truly prove that they committed a crime. Though it may seem like Fries was lucky to have his guns and firearms conviction reversed, it’s likely that he spent some time in prison, which is not very lucky. This case does show that prosecutors make mistakes—and it’s my job to find those mistakes and use them to my client’s advantage. In addition to failing to prove a vital element of the crime, prosecutors and police can make mistakes with gathering and storage of evidence, civil rights violations and more. At Seltzer Law, P.A., we can use those mistakes to break down the cases against our clients, creating lowered or dropped charges, lowered penalties and more.

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August 7, 2013

Prosecutors Drop Charges Against Deerfield Beach Man Accused of Sexually Abusing Child

Because I defend a lot of people accused of sex crimes, I was interested to see a recent article about a South Florida man accused of molesting a 10-year-old girl. According to the South Florida Sun-Sentinel, the charges against James Hollis, Jr. were dropped by prosecutors more than a month after his arrest. Prosecutors wrote in an Aug. 1 memo that there was no reasonable likelihood of conviction for several reasons. For one thing, the child’s aunt waited two days to report the allegation—saying she wasn’t sure if it had really happened. For another, a laboratory analysis of the t-shirt and pillowcase the girl was using at the time found no semen. That finding convinced state’s attorneys that the case was unlikely to succeed, according to the article. Hollis, 23, also denied that the molestation had happened.

According to the article, the girl said Hollis, a friend of her family, had committed sexual battery against her while they watched a cartoon together. He was arrested for it in June. However, prosecutors later concluded that there wasn’t enough evidence to make a conviction reasonably likely. The finding does not mean that prosecutors or police don’t believe Hollis did what he was accused of doing. Rather, they don’t believe they could prove it beyond a reasonable doubt in a court of law. This is an important distinction. As I noted after the Casey Anthony trial, “beyond a reasonable doubt” is a high standard—and it should be when someone’s freedom is at stake. If prosecutors bring more charges than the evidence supports, they run a strong risk of losing the trial. Because the Constitution forbids double jeopardy, they would never be allowed to re-try the defendant.

However, having the charges dropped doesn’t mean the accusation will have no effect on Hollis. Being accused of sex crimes against a child often results in immediate conviction in the “court of public opinion,” without a trial. Reputations can be ruined by these accusations before anything is proven. If the accused works in a job with an elevated behavioral standard (such as the military) or with children, he or she may be fired long before a trial. People who know the accused may turn against him or her based on their feelings of revulsion about the crime rather than the evidence. That’s one reason a strong defense is so vital for people accused of this crime. A strong showing that the evidence is on your side can help correct some of the damage the charges can do.

Seltzer Law, P.A., represents clients accused of all kinds of crimes—no matter how serious or upsetting. Based in downtown Miami, we represent clients across South Florida, in Orlando and throughout the state. Lead attorney David Seltzer is an experienced former Miami-Dade state’s attorney who understands how prosecutors put together their cases. Now, he uses that inside knowledge to help clients defend against serious criminal charges. We understand that criminal charges and arrests can come 24 hours a day and seven days a week, because police officers don’t go home after business hours. That’s why we answer potential clients’ calls 24 hours a day and seven days a week.

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July 31, 2013

Defendant in False Visa Case Should Have Confronted Interpreter But Error Not Plain – U.S. v. Charles

Because Miami is a city of immigrants, it’s not uncommon for criminal defense attorneys like me to handle immigration-related criminal charges. Some of these cases come with a twist, however: immigrants don’t always speak English well enough to navigate the court system. And when a translator is used, as one was in U.S. v. Charles, the quality of the translation can become an issue. In this case, Manoucheka Charles of Haiti was accused of knowingly using a fraudulent document to travel between the United States and Haiti. She used a Creole interpreter over the phone at the Miami-Dade airport, and a Customs and Border Patrol officer’s testimony about the interpreter’s statements was admitted at trial. The Eleventh U.S. Circuit Court of Appeals ruled that this did violate her right to confront her accuser, but, citing a dearth of precedent, the court found that this error was not plain.

Charles does not dispute that her document was false, but claims she didn’t know it was false. She arrived at the Miami airport and presented a Haitian passport, a customs form and a U.S. form I-512, which is authorization for foreign nationals to travel to and from the U.S. while they are in the process of gaining legal status. The first CBP officer didn’t speak Creole; the second checked the I-512 against the passport and discovered that the names and dates of birth didn’t match. This triggered a third officer, who used an interpreter over the phone to ask Charles questions. At her trial, the interpreter did not testify, but the CBP officer testified as to the responses the interpreter provided. Thus, Charles was unable to cross-examine the interpreter about seemingly incriminating phrases that may have been less incriminating in Creole. She was convicted.

On appeal, Charles argued that her Confrontation Clause rights were violated when the CBP officer testified about the interpreter’s statements without her having a chance to cross-examine the interpreter. The Eleventh Circuit agreed, but said that because Charles didn’t bring the issue up at trial, it could only reverse for plain error. And because the issue has not been addressed by binding precedent, the court said, it could not conclude that the error was plain. Under the Confrontation Clause, there are really two sets of statements: what Charles said in Creole and what the interpreter translated those statements to in English. Interpreters translate concepts more than words, the court noted. Thus, Charles should have been able to confront the translator, the Eleventh concluded, and no exceptions apply. But there is no binding precedent on the issue from the Eleventh Circuit itself or the U.S. Supreme Court, the Eleventh noted, so it declined to reverse.

The circumstances of Charles’s false I-512 suggest that she may have been cheated, which is a common story heard by immigration crime defense lawyers like me. Immigrants don’t have any reason to understand how U.S. law works, and sometimes, charlatans take advantage of that ignorance to sell them documents that will never stand up to close scrutiny. Unfortunately, being victims doesn’t prevent these people from getting into legal trouble in the United States, as Charles did. It’s encouraging that the Eleventh Circuit acknowledged that important nuances can get lost in translation, a precedent that I hope will help other immigrants facing criminal charges.

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July 24, 2013

Eleventh Circuit Denies Ineffective Assistance of Counsel Claim Based on Jury Irregularities – Castillo v. State of Florida

Misconduct by and around juries can be a very big deal in a criminal case, sometimes requiring a retrial. That’s because people charged with serious crimes have a right to a jury that has not been tampered with, and the right to effective assistance of counsel when jury-related issues arise. Complex jury issues informed the case of Anna Castillo in Castillo v. State of Florida, a petition she made to the federal courts for a writ of habeas corpus, based on ineffective assistance of counsel. Castillo was charged with attempted armed robbery, but her trial was marred by the fact that one juror may have missed the second day of the three-day trial, yet was still allowed to deliberate and vote for the outcome, without Castillo’s attorney noticing. The Eleventh U.S. Circuit Court of Appeals ultimately reversed the grant of the writ, finding no actual prejudice.

Castillo was convicted by a six-person jury of three counts of attempted armed robbery that took place in Miami Beach. The jury had to be unanimous to convict. Juror Ingrid Caldwell was absent on the second day of the trial, when most of the testimony took place. Castillo argued that Caldwell was nonetheless permitted to deliberate and vote with other jurors, who sent Castillo to prison for 15 years. The Eleventh Circuit noted that prosecutors for the state of Florida have changed their story on this issue, but assumed that Castillo was correct. In her habeas petition, Castillo argued that her attorney was ineffective because he or she failed to notice that Caldwell was participating in jury deliberations. The South Florida district court agreed with Castillo and granted the writ, saying the deficiency of her attorney was “per se prejudicial.”

The Eleventh Circuit disagreed. It assumed without deciding that Caldwell had been absent but permitted to vote, and that this represented a deficiency in her attorney’s representation. But even so, it said, Castillo couldn’t show that this created actual prejudice as required under Strickland v. Washington, because testimony presented on the second day largely weighed against Castillo. (Indeed, the court suggested that Castillo’s attorney might have thought it was better for the juror to miss this testimony.) Castillo argued that prejudice should be presumed under the Supreme Court’s U.S. v. Cronic, but the Eleventh Circuit said Cronic doesn’t apply when the counsel fails to object to just one important error; the failure must be systematic. Nor did the 2000 case Roe v. Flores-Ortega get Castollo around the prejudice requirement, the court said, because Castillo was not obliged to forfeit a proceeding. It reversed the grant of the writ of habeas corpus.

It’s tough to get a writ of habeas corpus, but the conduct described in this opinion is disturbing to me as a criminal defense lawyer. The prosecution apparently argued in Florida state court that Caldwell had not been absent, but argued in federal court that she had indeed been absent, but also not deliberated or voted. Under those confusing circumstances, it’s difficult to feel confident that Castillo’s state-court appeals were adequately considered. Unfortunately, remedies after the fact like state-court appeals or a federal writ petition—even when they work—are slow and tough to win, which is why it’s best to have a sharp, experienced attorney on your side from the beginning. At Seltzer Law, P.A., our goal is to raise important issues as they happen, so they are addressed or at least adequately preserved for appeal.

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July 17, 2013

Florida May Not Prosecute Both Single Traffic Charge and Habitual Traffic Offender Charge – Gil v. State

Here in Florida, we have a criminal charge for driving after your license is taken away for being a habitual traffic offender. A habitual traffic offender is someone with 15 convictions for moving violations within five years, or three convictions for serious offenses in five years. The three serious offenses include DUI, vehicular manslaughter, any felony using a motor vehicle, or driving with a suspended license. Unfortunately, it’s very easy to have your license suspended in Florida; the state will suspend a license for too many tickets or even conduct not related to driving, such as failure to pay child support. If the driver doesn’t realize it, which is possible if he or she changes addresses often, he or she can be charged criminally for driving with a suspended license and rack up points toward habitual traffic offender status. And driving as an HTO is a felony carrying up to five years in prison. So I was very interested to see an HTO case involving double jeopardy, in Gil v. State.

Pedro Gil was stopped for speeding in Miami-Dade County in 2009. His license was suspended at the time, and police records showed he was an HTO. He was arrested for driving with a suspended license, a misdemeanor, and for driving as a habitual traffic offender, a felony. The DWLS charge expressly excludes habitual traffic offenders. Gil pleaded nolo contendere to misdemeanor DWLS. On the same day, the state’s attorney charged him with a violation of the felony HTO statute. Gil moved to dismiss, arguing that he’d been placed in double jeopardy in violation of Florida law, which states that courts should not convict again for lesser included offenses, offenses with identical elements of proof, or offenses that are degrees of an earlier offense. He and the prosecution pointed to conflicting appeals court cases. The trial court granted the motion to dismiss, but the appeals court reversed.

The Florida Supreme Court reversed again, restoring dismissal of the HTO charge. It found two reasons Gil could not be prosecuted: the DWLS charge expressly says it’s mutually exclusive with an HTO charge, and they are also variant offenses that prosecuted together would be double jeopardy. It found that the language of the DWLS statute was unambiguous about being mutually exclusive with the HTO statute. On double jeopardy, the court said the Florida double jeopardy statute is designed to comply with Fifth Amendment caselaw by barring prosecution if the two statutes are “degrees of the same offense.” The court found they were. They are pat of the same statute; HTO designation can be obtained by repeatedly committing DWLS; and the legislative history supports this conclusion. Thus, the court disapproved the appeals court and reinstated dismissal of the charge.

I agree strongly with the high court that the driving while license suspended statute is mutually exclusive on its face with the habitual traffic offender statute. I’d like to add that it’s easier than you might think to be designated as a habitual traffic offender in Florida. As I mentioned, Florida suspends licenses for a variety of offenses, not all of which are necessarily related to driving. You can also be designated an HTO without ever driving with a suspended license, if you rack up 15 traffic offenses that put points on your license, like speeding tickets. Once you’re an HTO, you cannot legally drive, even to work, for at least a year. That’s why it’s vital to get a lawyer to address your traffic tickets or offenses as early as possible.

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July 10, 2013

Eleventh Circuit Upholds Sentence Enhancement for Physical Restraint With Implied Gun – U.S. v. Victor

The Eleventh U.S. Circuit Court of Appeals, the appeals court that covers Florida, recently made a decision in a robbery case with an interesting dispute. In U.S. v. Victor, Larry Victor pleaded guilty to bank robbery, but objected to a sentence enhancement for physically restraining a victim. Victor and an accomplice robbed a bank in Pembroke Pines, in South Florida, with Victor using what appeared to be a gun. The enhancement was applied for “restraining” a bank lobby employee by threatening to shoot her, though Victor never actually touched her physically. He objected at sentencing to the use of the sentence enhancement, but to no avail. The Eleventh Circuit upheld the lower court’s decision, finding that he did restrain the victim within the Guidelines’ meaning.

Victor entered the lobby of a credit union alone on the date of the robbery, holding something in his jacket as if it were a gun. In reality, it was just the clip from an assault rifle. He held the “gun” on a lobby employee and directed her toward the tellers, where he yelled that he would kill employees who did not comply and then demanded money. The tellers gathered money for him while someone else called the police. He fled in a car driven by an accomplice and, after police started chasing them, brandished the actual assault rifle at the officers chasing them. He ultimately pleaded guilty to bank robbery and to brandishing the rifle. After addition of sentence enhancements including one for physically restraining a person, the robbery charge had a Guidelines range of between three and four years of imprisonment. Victor objected to the restraint enhancement, arguing that he never touched the employee and only moved her a few steps, but he was overruled.

On appeal, the Eleventh Circuit upheld that ruling. The relevant section of the guidelines “provides an enhancement for robberies where a victim was… physically restrained by being tied, bound, or locked up,” it noted. However, the court also noted 20 years of decisions in which it applied the enhancement for conduct that ensured compliance and effectively prevented victims from leaving some location. Thus, it found, Victor’s conduct was within the meaning of the enhancement for physical restraint. It was immaterial that she didn’t go far, the court noted; no movement at all is required by the Guidelines. Nor is it material that he was not actually armed, the court said; he clearly intended to make the victim believe he was. The court further ruled that Victor’s sentence was not unreasonable for failing to depart downward from the Guidelines.

The Eleventh Circuit didn’t go into details about its past cases determining that physical restraint doesn’t necessarily require that the victim be “tied, bound, or locked up.” As a criminal defense attorney, I would have preferred a more detailed analysis of what exactly it means to restrain someone within the meaning of the sentencing guidelines. If Congress or the Sentencing Commission didn’t imagine “restraint” to include having a gun held on you, it seems unfair to create that meaning through court decisions. After all, one of the purported reasons for harsh sentences for armed robberies like this is deterrence, and a sentence that can’t be accurately predicted is not a deterrent.

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July 3, 2013

Blakely Sentencing Guidance Does Not Apply Retroactively, Florida High Court Rules – State v. Johnson

The U.S. Supreme Court has issued a series of rulings in recent years on sentencing law. Cases like Apprendi v. New Jersey and Blakely v. Washington are wins for defendants, permitting people already in prison to petition for sentence reductions where appropriate. One case like this is the Florida Supreme Court’s recent ruling in State v. Johnson. Sirron Johnson was convicted of armed kidnapping, armed robbery and armed sexual battery. He was sentenced to 48 years in prison, with that sentence becoming final in 2000 and reiterated on re-sentencing. This was a substantial upward departure from the sentencing range of 9.6 to 16 years. In this case, Johnson petitioned under Blakely for a new sentence, but the Florida Supreme Court ruled the decision cannot apply retroactively.

Johnson’s crimes took place in 1995, but his sentence became final in October of 2000, a few months after the U.S. Supreme Court issued Apprendi. That case prohibited judges from increasing sentences based on any fact that was not decided by a jury or admitted to in a plea agreement. Shortly after his conviction, Johnson petitioned for re-sentencing, arguing that the upward departure in his sentence exceeded the statutory maximum as defined by Apprendi. The trial court re-sentenced him to 40 years on two of the counts and 48 years on the armed robbery count, still a vast upward departure. In 2004, the Supreme Court issued Blakely, which held that for the purposes of applying Apprendi, state sentencing guidelines are the “statutory maximum.” Johnson again petitioned for re-sentencing.

The trial court denied Johnson’s motion, but the First District Court of Appeal reversed, finding Blakely applies retroactively to any case re-sentenced after Apprendi. The Florida Supreme Court ultimately reversed again. As a rule, Supreme Court cases apply to any case that is not yet final or pending on direct review. Blakely was not a clarification of Apprendi, as the appeals court said; the Florida Supreme Court said Blakely made new law on its own. Though making new law is one part of the test for retroactivity, the high court said, Blakely was not fundamentally significant enough to require retroactivity. Violation of the new rule is often held harmless, the court noted, and courts have relied extensively on the old rule, which weighs against making the new one retroactive. In addition, applying it retroactively would change the administration of justice, the court said, another factor against making it retroactive. Thus, it quashed the appeals court and restored the denial of Johnson’s motion.

I must agree with the Florida Supreme Court that applying Blakely retroactively would change the administration of justice—but that’s not necessarily a bad thing. If the U.S. Supreme Court has ruled that routine sentencing decisions deny defendants the right to a jury trial, it seems to me that justice requires correcting these routine sentencing decisions. The difference between 16 years in prison and 48 years in prison is not small, as my clients who are facing serious criminal charges, and their families, can confirm. If 32 of those years are the result of an illegal sentence, I believe that the defendant should have a chance to make his case.

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June 25, 2013

One-Week Delay Between Suspicious Behavior and Warrantless Search Was Too Long – U.S. v. Valerio

When I defend drugs and narcotics cases, the legality of searches is often very important. That’s because mere possession of drugs is illegal—and thus, a search can be the basis of criminal charges. But searches—and any resulting police seizure of property—must be legal in order to be admissible in court, because every American is protected from unreasonable searches and seizures by the Fourth Amendment. That principle was reiterated in the Eleventh U.S. Circuit Court of Appeals ruling in U.S. v. Valerio. Robert Joseph Valerio of south Florida was searched without a warrant nearly a week after law enforcement officers saw him acting in a way they thought was suspicious. The Eleventh agreed with Valerio that this was too long to support an exception to Fourth Amendment protections.

A DEA agent on a stakeout observed Valerio visiting a hydroponic gardening store. The agent noticed suspicious behaviors around his license plate during two visits, then followed Valerio to a warehouse in Deerfield Beach. A drug-sniffing dog later indicated drugs at bay 14 of the warehouse. However, a search warrant for bay 14 found that this was someone else’s bay, used as a recording studio where musicians sometimes smoked marijuana. DEA agents then were asked to go Valerio’s home for a “voluntary citizen encounter” in hopes of learning more. But instead of speaking with him as instructed, they waited for him to leave the home and searched him at gunpoint. Valerio eventually admitted to growing marijuana at the warehouse and was charged with growing more than 100 marijuana plants. He challenged the stop and frisk encounter at the subsequent bench trial, and again in this appeal.

The Eleventh Circuit started by noting that the government does not argue that this encounter was voluntary. It did argue that the search fell under the Terry v. Ohio exception to the requirement that police must have either a warrant or probable cause to stop and search someone. The Terry exception permits police to “conduct a brief, investigatory stop” if they have a reasonable suspicion of criminal activity, within the “rubric of police conduct” that must take place too quickly to permit a warrant. The Eleventh found that this was not an occasion for swift action requiring a Terry exception, because the search of Valerio took place nearly a week after agents had last observed him doing anything at all. Agents had the time to comply with the Fourth Amendment in several ways, the court observed. It reversed the denial of Valerio’s motion to suppress, vacated his conviction and remanded the case.

This is a good reminder that criminal defendants can score victories when police overstep their rights significantly. Police officers have a lot of leeway—the Terry exception is one example—but as the Eleventh observed, it’s not infinite. When practicalities allow, defendants’ Fourth Amendment rights must be respected, even if that’s inconvenient for officers. Granting the suppression motion will make the case much harder to win on remand, because the admission by Valerio, at gunpoint, was the center of the case against him. That statement and any resulting discoveries are “fruit of the poisonous tree” and cannot be used. That’s why I look carefully at police conduct in any drug possession case or other case that turns on the results of a search.

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June 17, 2013

U.S. Supreme Court Rules Facts Increasing Mandatory Minimum Must Be Decided by Juries – Alleyne v. United States

In 2000, the U.S. Supreme Court decided that juries, not judges, must decide any facts that would increase the defendant’s maximum sentence. That’s because every defendant has the Sixth Amendment right to a jury trial. But two years later, the same court ruled there’s no right to a jury trial of a fact triggering a mandatory minimum sentence. That decision was overturned today with the Supreme Court’s ruling in Alleyne v. United States. Allen Alleyne was convicted of robbery. At Alleyne’s trial, the jury found that he had used a firearm in a crime of violence, but not that he had “brandished” it, which increased the mandatory minimum sentence. The judge applied the mandatory minimum for brandishing anyway, but the Supreme Court overturned this, ruling that Alleyne had a Sixth Amendment right to have this determined by a jury.

Alleyne and an accomplice robbed a store manager who was driving the day’s cash receipts to the bank. The accomplice wielded a gun as he approached the manager. After he was caught, Alleyne faced, among other charges, a charge of using a firearm in relation to a crime of violence. This charge carries at least five years, but the penalty is increased if the accused brandished or discharged the firearm. The jury found that he used the firearm, but not that he brandished it. The presentencing report from prosecutors recommended a seven-year sentence for the “brandishing” version of this charge, but Alleyne objected, citing the jury’s decision. The judge overruled him, citing an earlier Supreme Court decision that this case overturns. The Fourth U.S. Circuit Court of Appeals agreed.

The U.S. Supreme Court reversed itself, finding that the earlier decision was inconsistent with a yet earlier decision, 2000’s Apprendi v. New Jersey, and the Sixth Amendment. The Constitution requires that each element of a crime be proved to the jury beyond a reasonable doubt. Previous Supreme Court cases have ruled that “sentencing factors” are not elements of a crime that must be so proven, but the current Court agreed with Alleyne that these cases can’t be reconciled with the logic of Apprendi. That case held that a “fact” is an element of the offense. The majority in this case argued that facts that increase the floor as well as the ceiling of the sentence, because both kinds of fact can make a penalty harsher. The case being overturned, and the dissent in this case, argued that the higher sentence didn’t require a jury because it could have been imposed without a finding of brandishing, because the range of five years to life includes seven years. But the majority found this irrelevant to the analysis of what the Sixth Amendment requires.

This is a great decision for defendants facing serious criminal charges. A lot is at stake when defendants reach sentencing. The difference between five years in prison and seven years in prison is two years of the defendant’s life. The dissenters in this case glossed over this issue, but it doesn’t matter whether the two years are attached to the bottom of a sentencing range or the top—those two years are very important to the defendant and his or her loved ones. That’s why this case will be welcomed by anyone facing a mandatory minimum, which includes a lot of serious federal and state crimes involving drugs and narcotics, sex or violence.

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June 10, 2013

Courts Must Apply Sentencing Guidelines Effective When Crime Committed, Not When Sentenced – Peugh v. U.S.

A U.S. Supreme Court decision handed down today will have great benefits for people charged with serious crimes. In Peugh v. U.S., the Supreme Court ruled that courts must apply the U.S. Sentencing Guidelines in effect at the time the crime was committed, not the time of the sentencing. This matters because there can be a lengthy delay between the sentencing and the actual crime—and during that time, the Sentencing Guidelines may be substantially increased. The Constitution prohibits legislators from passing ex post facto laws, which include laws that increase the punishment for a crime beyond what it was when the crime was committed. In this case, Marvin Peugh successfully argued that the application of contemporary sentencing guidelines for decade-old crimes was an ex post facto violation.

Peugh and his cousin, Steve Hollewell, ran an Illinois agricultural business that ran into financial trouble in 1999 and 2000. They solved this problem, but committed crimes, by taking out a series of loans based on false contracts, then artificially increased their bank account balances with check kiting. When they were caught, Hollewell pleaded guilty to one count of check kiting, but Peugh pleaded not guilty, went to trial, and was convicted of five counts of bank fraud. At sentencing in 2009, Peugh argued for application of the 1998 Sentencing Guidelines, saying applying the 2009 version would violate the ex post facto clause. The sentencing range from the 1998 guidelines was 30-37 months; the range from the modern ones was 70 to 87 months. The district court disagreed and gave him 70 months. On appeal, the Seventh U.S. Circuit Court of Appeals adhered to its own precedent and upheld the sentence.

The U.S. Supreme Court reversed on a narrow 5-4 ruling. The case came to the nation’s highest court via a circuit split over whether applying newer Guidelines in such cases violates the ex post facto clause. The Guidelines themselves call for applying older Guidelines when the newer ones violate the clause. The government argued in this case that there is no ex post facto problem because, post-Booker, all Guidelines are merely advisory. The Supreme Court ultimately disagreed. Though the Guidelines are now advisory, it said, the system still steers district courts into within-Guidelines sentences. Thus, the court said, defendants are still on notice that they face longer sentences after a revision of the Guidelines. Furthermore, it found that precedent already establishes that sentencing changes need not be binding to violate the ex post facto clause. It reversed and remanded.

This case is a win for criminal defendants charged with any crime that was allegedly committed years before it was prosecuted. In this case, the charge was financial fraud that presumably took time to uncover, but a long wait might be likely in any case that takes a long time to be revealed, such as embezzlement or even some violent crimes. Though there’s no guarantee that the U.S. Sentencing Guidelines won’t call for less time in prison in the future, legislatures tend to add time rather than subtract it—especially when the crime is a high-profile one that turns into a political issue, as child molestation sometimes does. Criminal defense attorneys like me will now have a better chance to minimize our clients’ time in prison.

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June 5, 2013

Florida Supreme Court Rejects Request for DNA Testing in Capital Murder Case – Jackson v. State

DNA testing has enabled courts to revisit some criminal cases they thought they’d closed for good years ago. However, it can be an uphill battle for defendants to obtain DNA testing in a closed case, as the Florida Supreme Court’s ruling in Jackson v. State shows. Etheria Jackson was convicted of the 1985 murder of Linton Moody, a stabbing. At the time, DNA testing technology didn’t exist, so several items gathered from the murder scene were not tested to corroborate testimony by Jackson or conflicting testimony by Linda Riley, a witness who Jackson alleges was the real perpetrator. The circuit court that heard Jackson’s later DNA testing motion ruled that there was no reasonable probability that the results could have changed the jury’s decision, and the Florida Supreme Court ultimately agreed.

Moody was the owner of a furniture store in Jacksonville from which Jackson and Riley, Jackson’s girlfriend, had bought a washing machine on an installment plan. Moody came to their home to collect money due on the plan, and Jackson allegedly assaulted Moody, beating him with a cast on Jackson’s arm and stabbing him repeatedly. Riley tested against Jackson at trial, and he was ultimately sentenced to death. In 2010, he filed a motion asking for DNA testing on six items from the scene, arguing that the testing would establish that Riley was the killer, or at least discredit some of her testimony. In particular, he asked for DNA testing on two knives, a belt, Moody’s pants and glasses and Jackson’s own cast. Of the items requested, the state was able to locate only the cast. But in any case, the trial court denied the motion, finding there was no reasonable probability that the DNA evidence would have resulted in an acquittal or a shorter sentence.

Jackson appealed directly to the Florida Supreme Court, which eventually agreed. It first analyzed the claim as to the cast from Jackson’s arm. At trial, testimony established that testing failed to find any blood on the cast. Jackson told police he’d washed his cast because it was dirty, but also argued at trial that the lack of blood showed Riley was not telling the truth about Jackson beating Moody with his cast. In his motion for DNA testing, Jackson argued that DNA testing would also establish a lack of saliva, skin cells or other DNA from Moody. He said that if a jury heard this, and also heard that DNA does not necessarily disappear when an item is washed, it could reasonably have changed its decisions. The high court disagreed with this, reasoning that it was the same argument made at trial about the blood and thus would not have swayed the jury. On the other items, the high court found that these may not even have DNA, their DNA might not implicate Riley, and any evidence couldn’t contradict other circumstantial evidence.

In an appeal like this, the court has the unenviable task of attempting to second-guess what a jury might have done. Without a slam dunk piece of evidence, such as the complete absence of the defendant’s DNA anywhere on the scene, it’s difficult to guess what a jury would do, especially a jury that made its decision 30 years ago. But in my opinion, murder is too serious a crime to deny defendants the privilege of DNA testing. Though the high court thought DNA testing would have been futile, a DNA test showing none of Moody’s DNA on the cast could have cast serious doubt on the rest of the evidence. Because the death penalty is very, very final, I believe it’s important to get it right, even if that means the state of Florida has to take extra time to do it.

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May 30, 2013

Florida Supreme Court Permits Overworked Public Defenders to Withdraw From Cases – Public Defender v. State of Florida

As a former Miami-Dade County prosecutor who now works as a private criminal defense attorney, I appreciate what public defenders do. These are the attorneys who represent people who can’t afford a private attorney, and it’s generally acknowledged that they have a tough job, with a large caseload that can make it hard to get to know each client’s case. So I was extremely interested to see the Florida Supreme Court’s ruling in Public Defender, Eleventh Judicial Circuit of Florida v. State . This is actually a case that consolidated two appeals: one from the Miami-Dade Public Defender’s office, and another from an individual public defender from that office. Both cases made the argument that the right of the public defender’s clients to effective representation was being violated by the office’s excessive caseload. The Florida Supreme Court’s ruling permitted the office to withdraw, leaving defendants to fall back on state-appointed private attorneys.

The case filed by the public defender’s office started when it moved to withdraw from 21 cases, saying it wanted to withdraw from all future non-capital felony cases because of a conflict of interests. It alleged that its excessive workloads, created by underfunding, made it impossible to meet its legal and ethical obligations. The trial court ultimately decided that the caseload was indeed excessive, allowing the office to provide only minimally competent representation, and granted the motion to withdraw from all future non-capital felonies after arraignment. The Third District Court of Appeal took the case on the State’s appeal and reversed the trial court’s order, ruling that excessive caseloads do not create a conflict of interests and that it was inappropriate to decide the cases in the aggregate.

In the single-defender case, the trial court granted an individual public defender’s motion to withdraw for a conflict of interests, citing the same logic. It also denied a constitutionality challenge to the Florida statute that excludes excessive caseload as a reason to withdraw from cases. The Third District upheld the constitutionality and quashed the order allowing the defender to withdraw.

The cases were consolidated before the Florida Supreme Court, which ultimately found that excessive caseload is a permissible reason for the public defender’s office to withdraw. The high court said it was struck by the evidence that the public defenders were overwhelmed. For example, Miami-Dade public defenders routinely represented twice as many non-capital felonies per year as recommended; they may have 50 cases going to trial in a week. Because of this, the court said, defenders can’t do basic parts of their job and must prioritize some clients over others. It reversed the Third, saying aggregate withdrawals are most efficient in this case, and that the public defender’s office demonstrated cause for withdrawal. It then held that while the statute forbidding public defenders from withdrawing solely because of excessive caseload was constitutional, public defenders may withdraw anyway if they demonstrate that their excessive caseloads would result in ineffective representation. A dissent argued that the court should have required proof of imminent harm or likelihood of harm.

The dissent is arguing that evidence of huge caseloads is not adequate to demonstrate likelihood of imminent harm to Miami-Dade defendants. I disagree. One of my advantages as a private criminal defense attorney is that I can limit how many cases I take, in order to ensure that the cases I do take get enough attention to give each client adequate representation. Public defenders don’t have that luxury because they work for the state. I see no reason to require that they prove they are not superhuman—or, worse, allow a case to slip through the cracks and harm a defendant—before the situation is remedied. The non-capital felony cases at issue in this decision are often very serious; many drug crimes are non-capital felonies, as is sexual battery in most cases. These crimes carry many years in prison and the prospect of living with a felony conviction for life, which is why it’s vital for each defendant’s future that he or she gets adequate representation right away.

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May 22, 2013

Eleventh Circuit Upholds Tax Evasion Conviction and Sentence as Reasonable – U.S. v. Paul

I’ve written here several times about tax evasion and tax crimes, particularly in the context of the IRS investigation of UBG customers’ overseas holdings. A case out of the Eleventh U.S. Circuit Court of Appeals, which is the federal appeals court that serves Florida, reinforces my previous warnings that there are serious consequences for tax crimes. In U.S. v. Paul, the Eleventh Circuit affirmed the conviction and sentence of William Paul for tax evasion and failure to file a tax return. Paul argued that the court erred in admitting as evidence a child support order, not granting him a delay after he decided to represent himself, adding a sentence enhancement for obstruction of justice, and failing to dismiss the failure to file charge. The Eleventh Circuit upheld all of the decisions.

Paul was the office manager for his wife’s medical practice. In that role, he decided in 2004 to change the practice’s legal status from an S corporation to a nonprofit organization, listing himself as the president of the nonprofit. Nonprofits are required to file a Form 990 tax return every year, and Paul apparently filed in 2004 and 2005, but not in 2006 or 2007. At trial, his wife and an IRS agent both testified that Paul arranged the practice’s affairs in order to avoid taxes. This behavior included, among other things, construing his wife’s income as a loan in order to avoid having to report income and thus pay taxes on it. After the federal government discovered the fraud, the income was underreported. For example, a late return for tax year 2006 reported $2,589 in income for Mrs. Paul, but her “loan agreement” with the medical practice put it at $400,000.

Paul appealed his conviction and sentence of 53 months in prison, an upward departure from the U.S. Sentencing Guidelines. He argued that he should have been granted a delay to prepare after deciding to represent himself, but the Eleventh disagreed. Paul didn’t show he was prejudiced by the lack of a continuance, the court said, because he had already had two continuances and had adequate access to discovery materials. He argued that the child support order was admitted in error, but the court said Paul had invited this by saying he didn’t object, and it was withdrawn as irrelevant in any case. The government proved that Paul violated tax laws willfully, the Eleventh said, noting that he knew he had to file Form 990 and had deliberately arranged his wife’s affairs to avoid having either of them pay taxes personally. Because he used sophisticated means to avoid it—depositing the “loans” into 35 bank accounts created for 13 shell businesses within the nonprofit—he merited his sentence enhancement. The Eleventh also upheld a sentence enhancement for obstruction of justice because Paul interfered with his wife’s communications with her attorney and encouraged her to plead not guilty.

The Guidelines sentencing range for Paul, with the sentence enhancements, was 33 to 41 months in prison. That’s already a lot of time in prison for tax evasion, but the court added another entire year because it felt the Guidelines didn’t adequately reflect the seriousness of the case. Indeed, the Eleventh Circuit noted that the maximum penalty permitted by law is 21 years; Paul received four and a half years. Nonetheless, most criminal defendants in tax cases receive probation. That’s most likely in cases where the losses to the government were low or the defendant’s behavior was not intentional; tax law is so complex that accidents do happen. When they do, however, the possibility of prison makes it absolutely vital to retain an experienced criminal defense attorney.

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May 15, 2013

Sixth Circuit Affirms Longer Sentence After Resentencing for Attempting to Entice Minor – U.S. v. Johnson

Because of the long sentences typical in federal child pornography and attempted enticement of a minor cases, it’s not often that I encounter an appeal from someone with two federal offenses. But in United States v. Johnson, the Sixth U.S. Circuit Court of Appeals affirmed a sentence for a defendant who not only had a prior federal offense, but had been re-sentenced after a prior appeal. Robert T. Johnson of Kentucky was convicted in 2001 of transmitting child pornography and attempting to persuade a minor to engage in sexual activity. He served a sentence of five years and three months and a period of supervised release—but when those periods were up, he was caught doing it again. In this appeal, the Sixth Circuit upheld a sentence of 30 years in prison that Johnson received on remand from a prior appeal.

Johnson’s first offense involved his communications with an FBI agent posing as a 14-year-old girl. He sent the “teen” multiple child porn images and arranged for the two to meet for sex. Instead, he was arrested for, and ultimately pleaded guilty to, transmitting child pornography and attempting to persuade a minor to engage in sexual activity. After 63 months in prison and two years of supervised release (a period when offenders’ Internet use is usually supervised), Johnson was once again caught sending multiple images of child pornography and trying to arrange sex with an individual he believed was a 13-year-old girl. This, too, was an undercover police officer. He pleaded guilty to transporting child pornography, sending obscene material to a minor, and possession of child pornography, and ended up with a sentence of 320 months in prison. His first appeal challenged the substantive reasonableness of the sentence, and the prior Sixth Circuit panel remanded, finding an ambiguity in the sentencing.

On remand, Johnson received a 360-month sentence, and again appeals. In a situation where a higher sentence was handed down on remand, the Sixth said, there’s a rebuttable presumption of vindictiveness. However, the court concluded that the judge in this case relied on its previous opinion. The previous opinion said the court couldn’t be sure whether the 320-month sentence was derived from an upward departure from the Guidelines or a downward departure, since it wasn’t clear whether a sentence enhancement for having a pattern of activity involving sexual abuse of a minor. Johnson’s first appeal argued that this enhancement was not applicable. On remand, the court determined that the enhancement does apply because the two convictions for child pornography crimes constituted “a pattern of activity involving the sexual abuse or exploitation of a minor.” Thus, it found that the presumption of vindictiveness was rebutted, and it rejected the appeal of both the sentence and its purported vindictiveness.

The meat of this opinion is rather short, which is disappointing because the court dedicated no effort to discussing what the sentencing guideline means. It’s clear that with more than one offense, Johnson has a pattern of some kind of activity. But I suspect his appeal hinged on an argument that child pornography crimes, and chatting up undercover police officers, do not “involv[e] the sexual abuse or exploitation of a minor,” and that argument wasn’t explored. I should also note the large difference between the sentences for Johnson’s first and second convictions; the second conviction carried about five times as much time in prison as the first. Because the stakes are very, very high for people facing a second charge, it’s absolutely vital for them to hire an experienced cyber crime defense attorney right away.

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May 7, 2013

Florida High Court Requires a Warrant Before Police May Search Arrestees’ Phones – Smallwood v. State

I’ve written here several times before about the ongoing question of whether and how police may search the cell phones of people they arrest. This is an important question in criminal defense law because important evidence may lie on cell phones—but police may also use them to go on “fishing expeditions” for evidence of unrelated crimes. And while there are already limits to police search powers under the Fourth Amendment to the U.S. Constitution, courts are still deciding how to apply those limitations in the digital age, when you can carry a library’s worth of data around on your mobile phone. I’m happy to say that the Florida Supreme Court recently ruled that police need a warrant to search the phones of people who were arrested, in Smallwood v. State. Cedric Tyrone Smallwood moved to suppress information taken from his phone after his arrest, and the Florida high court ultimately agreed to suppress it.

Smallwood was arrested for the armed robbery of a convenience store, and prosecuted for that as well as a firearms crime. During the arrest, an officer seized Smallwood’s phone, locked Smallwood into a police car, and looked for relevant data on the phone. He found several pictures of money, a gun and jewelry. The state got a search warrant well after the photos were found, but at trial, Smallwood’s attorney objected that the search was still illegal. Though a search may be lawful if it’s incident to arrest, the defense lawyer argued that this exception did not apply because the search was not conducted to preserve evidence or protect officer safety. The trial court disagreed, denying the various objections the defense raised during and after trial. Smallwood was convicted.

On appeal, the First District Court of Appeal affirmed the use of the cell phone evidence, but noted a wide range of opinions on this topic. In light of its Fourth Amendment concerns, it asked the Florida Supreme Court to review this question: Does 1973’s United States v. Robinson allow a police officer to search through a suspect’s phone incident to arrest, when there is no reasonable belief that the phone contains evidence of a crime?

The Florida Supreme Court ultimately decided it does not. Searches without judicial approval are presumed unreasonable unless they fall within certain exceptions. The court first concluded that Robinson is not on point here because it was decided 40 years ago, before the rise of handheld computers. (A dissent disagreed.) Applying a 2009 U.S. Supreme Court case, Arizona v. Gant, the Florida court concluded that it was legal for the officer to separate Smallwood from his phone, but not to search it. Once the phone was removed from Smallwood’s person, there was no risk that he would destroy evidence and no way for him to use it as a weapon. Thus, neither exception to the requirement to get a warrant existed, and the officer violated the Fourth Amendment. “We refuse to authorize government intrusion into the most private and personal details of an arrestee’s life without a search warrant,” it concluded, before adding that the error was not harmless or made in good faith.

The Florida high court compared authorizing cell phone searches to providing a key to the arrestee’s home. I must agree. The sheer amount of data on a late-model mobile phone was hard to imagine that the time that Robinson and other important Fourth Amendment cases were decided. The papers an arrestee can have on his or her person would have to be carried in a wheelbarrow to begin to match the size of the data. And, as the court pointed out, there are numerous kinds of highly sensitive data on typical mobile phones, such as banking information and personal email. It would certainly be easier for police to find evidence of a crime if they were given permission to go through this data whenever they wanted, but that’s not what the Fourth Amendment allows. This issue will likely be revisited in the U.S. Supreme Court, but I believe the Florida court made the right decision.

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May 2, 2013

Eleventh Circuit Reverses Immigration Removal Order, Finding No Misrepresentation – Ortiz-Bouchet et al v. Attorney General

Because I represent so many people seeking help changing or protecting their immigration status, I was interested to see a recent ruling reversing an order that two people be removed from the United States. The Eleventh U.S. Circuit Court of Appeals, which is the federal appeals court for Florida, ruled that an immigration appeals judge applied the wrong standard when it ordered the removal of a married couple. In Ortiz-Bouchet et al. v. Attorney General, Kelvin Ortiz-Bouchet and Edith Carolina Malpica-Zapata were ordered removed on the grounds that they were inadmissible when they attempted to adjust their immigration status. Neither was in possession of valid entry documents; Ortiz had procured documents by fraud; and Malpica had sought entry into the United States after spending time as an undocumented immigrant. The Eleventh Circuit found that two of the rules didn’t apply to their situation, and that Ortiz did not make a willful misrepresentation.

The couple sought post-entry adjustment of status while they were already in the United States. An immigration judge ordered them removed instead, finding that they were removable because they were inadmissible by law. The immigration judge said neither were in possession of valid entry documents. Furthermore, the IJ ruled, Ortiz had procured the documentation he did have by fraud or willful misrepresentation of facts. And finally, the IJ said Malpica was inadmissible because she was seeking admission within 10 years of departing the United States, after being unlawfully present for a year or more. They appealed to the Bureau of Immigration Appeals, which affirmed this ruling without comment or an opinion.

The Eleventh Circuit started by finding that the rule prohibiting entry for people without valid entry documents is only for people seeking to enter the United States. It does not apply to people adjusting their status, as Malpica and Ortiz sought to do, the court said. On the fraud and willful misrepresentation issue, the Eleventh found that Ortiz’s misrepresentations were the responsibility of Marciel Cordero, who Ortiz hired to submit a religious petition for entry that included false statements. Ortiz testified that he had never seen the documents and his signature was forged; this statement was not rebutted. The IJ found that Ortiz didn’t willfully misrepresent a material fact, but nonetheless ordered him removed for willful misrepresentation. The Eleventh reversed, saying the BIA has made clear that fraud requires actual misrepresentation. Finally, the appeals court found that Malpica had left the United States pursuant to a grant of advance parole. Under a previous case, the Eleventh said, this does not qualify as a departure within the meaning of immigration laws; thus, Malpica was not removable. It vacated both people’s order of removal.

In my experience representing people subject to removal or deportation proceedings, most cases that make it to the appeals courts are upheld without much comment. So it’s pleasing to see that the Eleventh Circuit reversed this removal order with an opinion that took the time to scrutinize the case’s history. Indeed, the fact that the first immigration judge made mistakes of law is disturbing, and a good reminder that people fighting removal and deportation need an experienced immigration lawyer on their side. The consequences of being removed from the United States are life-changing: it can end a career and separate the immigrant from loved ones who remain in the United States, sometimes including U.S.-born children. That’s why, if you face an immigration crime or immigration proceedings, you should call Seltzer Law. P.A., as soon as possible to discuss how we can help.

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April 24, 2013

Eleventh Circuit Rules Felon’s Possession of Handgun Qualifies as Crime of Violence - U.S. v. Hall

I’ve written here several times before about appeals of criminal sentences that were enhanced by one or another “tough on crime” measure. Legislatures love to pass laws making already illegal acts punishable even more harshly, because it helps them demonstrate to voters that they oppose crime. Unfortunately, these laws are sometimes unclear about what conduct is required to enhance the sentence—and the resulting sentences are so inflated that the defendants have a strong incentive to pursue an appeal. In United States v. Hall, Derrick Hall received a sentence enhancement under the U.S. Sentencing Guidelines for having a prior “crime of violence,” which in his case was possession of an unregistered sawed-off shotgun. Hall’s appeal argued that this possession crime could not be a crime of violence. But the Eleventh U.S. Circuit Court of Appeals ultimately concluded that it was.

Hall’s instant crime was possession of a firearm by a felon. He pleaded guilty to that charge. However, the district court enhanced his sentence for a prior “crime of violence”—a 2006 felony conviction for possession of an unregistered sawed-off shotgun. The Sentencing Guidelines say a “crime of violence” is any state or federal offense punishable by more than one year in prison, that has as an element the use, attempted use or threatened use of force against someone else’s person, or otherwise involves conduct that presents a serious potential risk of physical injury to another. This gave Hall a base offense level of 20, which was then reduced by three levels for acceptance of responsibility. He ultimately ended up with a Guidelines range of 30 to 37 months in prison and was sentenced to 37 months.

The Eleventh Circuit started by noting that the commentary to this Guideline expressly notes that unlawfully possessing a sawed-off shotgun is a crime of violence. The Sentencing Commission amended the commentary in 2004 to reflect Congressional determination that possessing that weapon or others described by federal law is “inherently dangerous and when possessed unlawfully, serve only violent purposes.” In addition, the Eleventh noted, recent of its own cases have permitted it to rely on the Armed Career Criminal Act’s definition of “violent felony.” Hall argued that the sawed-off shotgun conviction is not “roughly similar in kind” to the other offenses listed in the Guideline, and that commentary to the Guidelines is not binding because of the Supreme Court’s determination that the Guidelines are advisory. The Eleventh disagreed, pointing to a 1993 Supreme Court decision saying the commentary is authoritative. Thus, it affirmed Hall’s sentence.

Interestingly, the case Hall relied on to argue that the commentary should be disregarded is from 2005, making it 12 years newer than the 1993 case the Eleventh Circuit relied on. For that reason, and because courts have rejected enhancements for firearm possession under the Armed Career Criminal Act, it wouldn’t surprise me to see a different federal appeals court come to a different conclusion. Possession of a firearm by a felon is prohibited for public safety reasons, but that public safety prohibition does not require us to conclude that mere possession is violent. It’s not clear how much extra time Hall will serve on his new firearms charge as a result, but it’s clear to me that when someone’s freedom is at stake, courts should be careful and precise about their language.

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April 18, 2013

Florida Supreme Court Upholds Longer Sentence for Prison Release Reoffender – Paul v. State

Federal and Florida law have several statutes that increase sentences for people perceived as recidivists. At the state level, one such law labels offenders Prison Release Reoffenders if they commit certain felony crimes within three years of being released from prison. This status requires the judge to sentence the offender to the maximum allowable penalty. Not surprisingly, with so much at stake, offenders given PRR status frequently try to challenge their status. That was the challenge in Paul v. State, an appeal from Charles Paul of a conviction for shooting a gun into an occupied vehicle. Paul argued that the charge was not a qualifying felony for the PRR law. The Fourth District Court of Appeal disagreed, but the decision conflicted with a First District decision, so the Florida Supreme Court took it up and ultimately agreed that Paul qualified as a PRR.

Paul was convicted of shooting into an occupied vehicle. His PRR status comes from the PRR statute’s “catchall” provision, which says the law applies to a defendant who commits “any felony that involves the use or threat of physical force or violence against an individual.” The trial court therefore sentenced Paul to 15 years in prison. He filed a postconviction motion disputing his sentence, which was denied. On appeal at the Fourth District, he argued that shooting into an occupied vehicle is not a felony that triggers the PRR law. The Fourth District affirmed, saying that it had been filed under the wrong rule, but even if it had been filed correctly, it lacked merit because firing into an occupied vehicle necessarily includes the use of force against an individual. This was a direct conflict with the First District’s decision in State v. Crapps, which found that the PRR law did not apply to Alander Crapps, convicted of throwing a deadly missile into an occupied vehicle.

The Florida Supreme Court ultimately sided with the Fourth District, agreeing that shooting into an occupied vehicle triggers longer sentences under the prison release reoffender law. Only the statutory elements of the offense can be considered when analyzing whether the PRR law applies to a particular offense, the court said; the circumstances of this particular offense are not important. Thus, it looked to the statute to determine whether violating it “involves the use or threat of physical force or violence against an individual.” The text of the statute Paul was convicted of violating, and past cases, make it clear that an element of the crime is that a person must be using or occupying it. Paul argued for a definition of “use” that didn’t necessarily require an occupant, but the high court felt this would broaden the statute to reach behaviors the state legislature didn’t intend to prohibit; vehicles would always be “in use.” It therefore upheld Paul’s sentence.

I cannot fault the logic of the high court—but as a criminal defense attorney, I’d like to talk a little about the prison release reoffender law and similar laws. All of these laws have the noble goal of attempting to discourage recidivism or protect law-abiding people, but it’s worth asking if they achieve that goal at all, or if they achieve it at a worthwhile price. By taking away judges’ discretion to sentence offenders to a penalty they think is appropriate, the PRR law and others like it fill our prisons without regard for circumstances, which is expensive and wastes lives. They also make judges into mere rubber stamps for the Legislature, which undermines the goals of having judges in the first place. That’s why I don’t blame Paul and others like him from doing their best to avoid the PRR law.

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April 9, 2013

Florida Supreme Court Rules Offender Cannot Be Committed Because Custody Unlawful – State v. Phillips

The Florida Supreme Court recently decided an unusual issue: can the state start involuntary civil commitment proceedings against an offender who should already have been released from prison? In State v. Phillips, Larry Phillips was held in prison past the time when he should have been released, thanks to a post-conviction award of time served. Authorities wished to commit Phillips involuntarily under the Jimmy Ryce Act, as a sexually violent predator, after he committed three sex crimes, but Phillips moved to dismiss because, he said, he should already have been released. The trial court disagreed and denied his motion, but the appeals court disagreed and ordered Phillips’s immediate release. The Florida Supreme Court ultimately upheld that order, finding that the state has no jurisdiction to start civil commitment proceedings against someone who should already have been released.

Phillips was prosecuted for separate offenses in both Georgia and Florida in 1990. The Georgia offense wasn’t specified; the Florida offense was lewd and lascivious assault. He served three years in Georgia, then sentenced to time served for the Florida case. He served his probation for both states in Georgia, but violated it in both states with a new charge of aggravated child molestation. After being paroled from a Georgia prison sentence, he was sent to Florida and sentenced to 5.5 years, less 177 days of time served. He later successfully moved to correct his sentence to reflect two years of time served granted by the Florida court for the original crime. Two months later, Florida authorities released him to a civil commitment center and started evaluation of whether he was a sexually violent predator under the Jimmy Ryce Act. Three and a half years later, still in custody without the benefit of a trial, Phillips moved to dismiss the commitment petition on the grounds that he should have been released when his sentence was over with credit for time served—which was before the transfer to the civil commitment center.

The district court denied the motion to dismiss, saying Phillips had been in lawful custody according to the full 5.5-year sentence. Phillips appealed to the Second District Court of Appeal, which reversed. That court found that Phillips was not in lawful custody because the sentencing court failed to award credit for prior time served, and that defendants cannot be committed if they are not in lawful custody. It dismissed the civil commitment case with prejudice and ordered him released from civil commitment detention.

The Florida Supreme Court accepted the case and granted a stay of the Second District’s order, but ultimately agreed with that court. The high court had previously interpreted the Ryce Act’s references to “custody” as requiring lawful custody. After a thorough review of prior cases, the court found nothing to meaningfully distinguish this case from its previous decisions. A dissent argued that releasing Phillips here would permit offenders to game the system by delaying their motions for sentence corrections, but the majority said offenders do not have sole power to determine the timing of Ryce Act proceedings relative to their own motions. The Supreme Court also noted that civil commitment requires due process of law, and urged everyone in the justice system to avert this problem by making sure sentencing orders are accurate.

The practice of civilly committing those who committed sex crimes has attracted a lot of criticism as a violation of those offenders’ civil rights. The story behind the appeal by Phillips does a lot to reinforce those concerns. This defendant apparently should have been released six months before his civil commitment proceedings began, but was nonetheless held without a trial for four years after the correct release date. In a criminal proceeding, this would have clearly violated his constitutional right to a swift trial. I suspect there is little concern about the constitutional rights of sex offenders; indeed, it’s not clear that civil commitment is primarily intended to serve public safety rather than revenge. If we are going to have the Ryce Act (and other state laws like it), I agree with the Florida high court that it’s vital to respect the due process rights of offenders like Phillips, even if we don’t like the crimes they committed.

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April 4, 2013

Police May Not Use Drug Sniffing Dogs Outside Front Doors, Supreme Court Rules – Florida v. Jardines

I was very pleased to see that a South Florida criminal case made it all the way to the U.S. Supreme Court—which made a recent ruling protecting homes from unreasonable searches. In Florida v. Jardines, Joelis Jardines of Miami-Dade County was convicted on drug charges after police used a drug-sniffing dog to sniff around his front door. The dog indicated the presence of drugs, and police later discovered that the home was a marijuana “grow house” entirely filled with plants. Jardines moved successfully to suppress the search evidence, causing a series of appeals that led to a defendant-friendly ruling from the Florida Supreme Court. Last week, the U.S. Supreme Court upheld that ruling, finding that the area immediately surrounding a home (“curtilage”) is part of the home itself for the purposes of the Fourth Amendment right against unreasonable search and seizure.

The Miami-Dade Police Department got an anonymous tip that Jardines’s home was being used to grow marijuana. A month later, a team of officers visited the home. After 15 minutes of surveillance, two officers approached with a drug-sniffing dog on a long leash. The dog indicated the presence of marijuana, most strongly by the front door. The officers obtained a search warrant based on the dog’s behavior and discovered a grow house; Jardines was prosecuted for marijuana trafficking and grand theft. He succeeded in suppressing the search information at trial, but the Third District Court of Appeal reversed. The Florida Supreme Court reversed again, finding that the use of the drug-sniffing dog was a search of the home within the meaning of the Fourth Amendment. Thus, the search was illegal, the court agreed, and the evidence could not be used.

The Miami-Dade State’s Attorney’s office appealed to the United States Supreme Court—but that court agreed with the Florida high court. The Fourth Amendment requires police officers to get a search warrant before physically intruding into a person’s home, the court noted. “That right,” wrote Justice Scalia for the majority, “would be of little practical value if the State’s agents could stand in a home’s porch or side garden and trawl for evidence with impunity.” Previous cases have held that a home’s “curtilage,” the area immediately surrounding and associated with the home, is protected by the Fourth Amendment as well. Thus, the search with the dog required a search warrant. And because the police didn’t have one, the high court upheld the suppression of the search evidence. Concurring justices added that the search implicated privacy concerns; a dissent said there should be no reasonable expectation of privacy at a front door that many people may approach.

This case will have important results for defendants accused of all kinds of drug crimes. Because proving the existence of the drug is enough to create a conviction, drug-sniffing dogs are a valuable tool for law enforcement. If law enforcement doesn’t need any reasonable suspicion to use drug-sniffing dogs outside everyone’s home, there is nothing to stop officers from simply walking the dogs up to every home in their city, trolling for people to charge with drug crimes. That’s not a result the founders of our country envisioned when they wrote the Fourth Amendment, and I don’t believe it’s a desirable result in any century.

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March 27, 2013

Florida Supreme Court Rules Wrong Jury Instructions Were Fundamental Error - Williams v. State

I was pleased to see a recent Florida Supreme Court case that will cement a change in the way jury instructions are given in Florida for the serious crime of manslaughter. In Williams v. State, defendant Amos Williams was convicted of attempted manslaughter. Manslaughter in Florida is a killing without intent to kill, but the standard jury instruction for manslaughter requires the jury to find the defendant intended to kill. As a result, Williams argued, the jury instructions in his case were wrong and he should be granted a new trial. The high court agreed, holding that the jury instructions used are wrong when the crime of conviction is no more than one step removed from the offense of instruction. A dissent argued that while the jury instructions were wrong, this was not fundamental error and Williams should not get a new trial.

Williams stabbed his (now ex-) girlfriend multiple times in 2006, in front of their ten-month-old daughter, and prevented her from fleeing by stabbing her more when she tried. He told police she fell on the knife during a struggle. The criminal charge was attempted first-degree murder, but the jury found him guilty of attempted second-degree murder, burglary and false imprisonment. The instruction on attempted manslaughter said the state must prove that Williams intended to cause his ex-girlfriend's death, but also that he did not need premeditated intent to kill. Williams appealed this instruction to the Fourth District Court of Appeal, saying a contemporary case, State v. Montgomery, had invalidated the standard instruction. The court issued a corrected jury instruction as a result. The Fourth District upheld the ruling and Williams again appealed.

The Florida Supreme Court considered two questions: Did the jury instruction constitute fundamental error, and is attempted manslaughter a viable offense after Montgomery? It ultimately said yes to both. The manslaughter statute imposes no requirement that the defendant intended to kill, the court said, and attempted manslaughter must follow the same rule. And because the instruction for manslaughter was erroneous, the court said, the jury may have convicted him of second-degree murder because it thought that was the only option available when there was no intent to kill. Thus, the court said, a correct instruction would have been vital to the decision between possible charges--making the error a fundamental error. Whenever an erroneous instruction is no more than one step removed from the crime of conviction, the court said, it's fundamental error. It went on to hold that attempted manslaughter is still a viable offense in Florida.

This decision does not permit Williams to go free, although it's possible that the jury at his new trial will have a radically different view than the first jury and acquit him. What it does is permit that second jury to find Williams guilty of attempted manslaughter rather than attempted murder, which means he could serve a shorter sentence. An attempted crime is penalized just like a completed crime, which means the maximum sentence for attempted second-degree murder is life in prison; the maximum sentence for attempted manslaughter is up to 15 year. That difference is important to Williams, the families involved and the Florida justice system, which is why I agree with the high court that this erroneous jury instruction constitutes fundamental error and should be corrected with a new trial. Even defendants who are not sympathetic deserve a fair trial.

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March 20, 2013

Length of Child Pornography Sentence Depends on Geography More Than Offense, Report Finds

The U.S. Sentencing Commission report on child pornography sentencing made a splash in the criminal defense community by recommending sentencing changes that many believe are long overdue. (Of course, because Congress must enact most changes, we must hope Congress agrees.) One of the often-cited bases for this is the fact that different offenders get widely varying sentences for the same non-production child pornography offenses. Because the Sentencing Commission was so thorough with its report, there is a study showing this. The Commission examined sentencing data from similar cases around the United States in the same year, controlling for factors like a prior history of criminally dangerous sexual behavior. Tellingly, it found that geography—physical location, and possibly the inclinations of federal judges in that location—played a large role than criminal history.

The issue is addressed in Chapter 8 of the report: “Examination of Sentencing Disparities in Sec. 2G2.2 Cases.” Those are cases involving receipt, transport, distribution or possession of child pornography, which are distinct from production cases because production necessarily involves participating in or orchestrating the rape of a child. The Commission looked at non-production cases that were sentenced in 2010, involving defendants with no criminal history (including no previous sex offenses) and had an offense level, for Guidelines purposes, of at least 13. The first comparison looked at disparities both within people convicted of the same offenses and between different offense types. It found substantial disparities in both, with receipt, possession and distribution carrying a wide range of months in prison despite the similarity of the conduct. This was one basis for the Commission’s later recommendation to align sentencing for receipt and possession.

The next section looked at what case features cause courts and prosecutors to limit the sentences of non-production child porn offenders. This too caused a substantial variance in sentences. The cases where someone acted to limit the sentence had a median sentence of 63 months, whereas cases where no one limited the sentence had a median sentence of 135 months—twice as long. To explain the difference between the groups, the Commission examined the effects of distribution conduct; prior criminal history; demographic characteristics; substance abuse; military service; and history of sexual abuse. None of these seemed to make a significant difference in whether prosecutors or courts limited their exposure. A prior history of criminally dangerous sexual behavior did seem to result in an increased sentence. But the most surprising finding was that geographical location played a large role. Courts in the Seventh and Eleventh Circuits were least likely to limit sentencing exposure, while the Second and Third were most likely.

This is particularly interesting for me because the Eleventh Circuit is the home circuit for my clients here in South Florida. While I represent clients across the United States and am admitted to practice in multiple federal district courts, I’m concerned that my Florida defendants are not getting the same consideration as defendants in, say, Philadelphia. Indeed, the report goes on to say that the Middle District of Florida (the Orlando area) has one of the highest numbers of cases of non-production child pornography offenses, but limits sentencing exposure in far fewer cases than other high-volume districts. However, it’s also telling to see that even the jurisdictions with the least limitations on sentences are still most likely to limit sentences. Cases in the Seventh Circuit limited sentencing exposure 63.1 percent of the time, which is more than half the time. That’s encouraging, because it shows that judges recognize that child porn sentencing is broken and will take steps to fix it even if the Commission’s recommendations are not realized.

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March 13, 2013

Sentencing Commission Recommendation Uncovers Interesting Recidivism Research

Ever since the U.S. Sentencing Commission came out last month with its new recommendations on sentencing for child pornography crimes, I’ve been writing about the good and bad things about those recommendations. Today, I’d like to discuss something that may have been overlooked in the press: the Commission’s conclusions on recidivism—that is, the propensity to commit another offense—among people who have been convicted of child pornography crimes. Recidivism is a major concern for sentencing courts, which often go on the record saying they are concerned about protecting live children from molestation. Even when the offender has no record of crimes involving sexual contact with children, the assumption is that he or she would like to commit such crimes. The Commission’s research surprised many—and disappointed prosecutors—by concluding that the rate of known recidivism for those crimes is no larger than the rate of recidivism for other criminal offenses.

The Commission dedicated an entire chapter to the issue of recidivism. That chapter focused on offenders sentenced in 1999 and 2000, years chosen to ensure that the offenses took place using modern technology, but long enough ago that the offenders are now free. The study used arrest records, causing the Commission to caution that it could only comment on known recidivism; it’s unlikely that all re-offenders are caught. Of the 610 offenders who ended up being studied, the Commission found that 70 percent did not re-offend at all. Of the 30 percent who did re-offend, less than a third committed new sex offenses; a total of 7.4 percent of the offenders committed some kind of sexual recidivism and 3.6 percent committed sexual recidivism with contact. Nine of the offenders (4.9 percent of the recidivists) had another conviction for a non-production child pornography crime, while 11 offenders (6 percent of all recidivists) had a contact sex crime.

The Commission also dedicated a chapter to discussing prior criminally dangerous sexual behavior as it affects child pornography offenders. That chapter noted that social scientists have consistently found CDSB—or sexual “precidivism”—pose a greater danger to society. These offenders, the Commission wrote, pose a greater risk of later recidivism than people who committed the same non-production child porn crimes without a precidivism history. A known history of CDSB also makes the offender more likely to have committed past CDSB crimes that were not caught. (Some of this data comes from self-reported crimes, surprisingly, and not all were caught by authorities.) Not surprisingly, people with histories of CDSB got longer sentences than people without, and people with contact offenses in their past got longer sentences than people with a CDSB conviction for child porn.

The Commission found that the known recidivism rate for child porn offenders was similar to that of offenders in general. The U.S. Justice Department later objected to these conclusions, saying that the data was too limited to form the basis of any recommendation to be the basis for modifying child pornography sentencing. I agree that the data is limited—the Commission itself pointed this out—but I disagree that the best science available should not be the basis for changing the Guidelines. Even prosecutors agree that the current sentencing scheme is broken, creating inconsistent and sometimes disproportionately harsh sentences. To create consistent, just sentencing schemes, we should absolutely use the science we have at hand. If courts have handed down harsh sentences based on the belief that child porn offenders were likely to commit contact sex offenses against children, new evidence should cause them to reconsider.

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March 6, 2013

Sentencing Commission Report Exposes Problems With Pre-Internet Sentencing Scheme

The U.S. Sentencing Commission made big news in late February when it came out with recommendations for substantially changing the way child pornography crimes are sentenced in our country. There are many, many interesting things about this report, which makes recommendations that, for the most part, Congress must act on. Today, I’d like to focus on an important inadequacy the Commission identified: the fact that the child porn laws were, by and large, written in a pre-Internet world but are being applied in a society where the Internet is ubiquitous. This has implications for the crimes themselves as well as several sentence enhancements. And as the Commission reported, the pre-Internet sentencing scheme means that some offenders face penalties far too harsh for the circumstances, while others may face penalties that don’t adequately reflect the seriousness of their actions.

Child pornography laws were first made before the rise of the Internet. (In fact, possession of child pornography was not a federal crime until the 1990s.) Prior to widespread Internet access, a DOJ report says, many of the people who possessed child pornography were the producers of the child pornography—and more images meant they had produced much more of it. Those who were not the producers had generally paid for it, meaning they were directly paying for children to be sexually exploited. Not surprisingly, they bought only what they truly wanted. And distributing it was not easy because it had to be in person or via mail, both of which could be risky. The number of people prosecuted for child pornography crimes was much smaller, possibly because there were actually fewer or maybe because it was harder to get caught.

However, with the rise of the Internet, the characteristics of child porn offenses have changed considerably. All images are now easy to replicate and send at the push of a button, traveling between servers without any humans handling a package. As a result, it’s easier to get and share child porn, and this has given rise to huge collections. In fact, some offenders collect images of a type they don’t prefer, so they can barter them with other collectors. Though exact numbers are hard to come by because it’s a crime, evidence exists that of those who collect, only a minority have actually committed a sex crime against a child. They rarely pay for child porn because they don’t have to. In addition, online child pornography sharing communities exist, and members often encourage one another to commit new crimes against children in order to make and share child porn.

All of this means that the original, pre-Internet sentence enhancements for child pornography crimes don’t make sense in a wired world. The Sentencing Commission thus suggested modifications that would ease overly harsh sentences for some offenders and lengthen sentences for others. In addition to recommending that Congress get rid of the sentence enhancement for using a computer—which is applied in virtually every crime—the recommendations suggest a more thoughtful approach to enhancements for collections, taking into account the kind of images and how long the offender has collected them. It also recommends adding enhancements for degree of involvement in an online child porn community, which didn’t exist when the first laws were written. If adopted, this could substantially change criminal defense law affecting people accused of child porn offenses.

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February 26, 2013

Florida Supreme Court Upholds Denial of Postconviction DNA Testing – Zeigler v. State

The advent of DNA testing has revealed that a surprisingly large number of people convicted of serious crimes were wrongly convicted. This most often takes place in cases that were finished before the advent of DNA testing, which means some of the defendants had been in prison, or even on Death Row, for decades before the technology was available to free them. However, courts have sometimes been reluctant to allow post-conviction DNA testing, believing that the courts’ time should not be spent on “hail Mary” DNA testing requests. I was disappointed to see that the Florida Supreme Court denied a request for DNA testing in Zeigler v. State, a capital murder appeal that grew out of a 1976 case. The court ruled that DNA testing would be pointless because the evidence sought by William Thomas Zeigler couldn’t change the outcome of his murder case.

Zeigler was convicted of the murders of his wife, Eunice Zeigler; a friend, Charlie Mays; and his in-laws, Perry and Virginia Edwards. His two death sentences were reaffirmed on appeal. He requested and received DNA testing in 2001, which found no blood of Perry’s on Zeigler’s clothing but Perry’s blood on Mays’s clothing, corroborating his testimony that Mays was a perp rather than a victim. He moved to vacate his sentences and for more testing, which was denied. At issue here is a further request for DNA testing in 2009, which he believed would show that Perry’s blood was not in Zeigler’s clothes; that it is on Mays’s clothes; and that he did not beat Mays. This would discredit a state’s witness and demonstrate that Mays was the perpetrator, he said. After the circuit court denied the request, Zeigler filed the instant appeal.

The Florida Supreme Court found that Zeigler’s request was barred by collateral estoppel, and also denied it on the merits. It found collateral estoppel applies because Zeigler’s theories about who really did the killings had been rejected in previous appeals. The high court noted that it had already ruled that absence or presence of different people’s blood on different people’s clothes did not establish that Zeigler wasn’t the killer. The Supreme Court went on to rule that Zeigler’s current arguments hold no more merit than the previous ones because he hasn’t demonstrated how more DNA testing could create a reasonable probability of an acquittal or lesser sentence. Movants for DNA testing must explain how the testing will do one of those. Because all stains on the clothes would need to be tested, and because a struggle could have smeared blood on both Mays and Zeigler, the court said, testing would not establish who was the perpetrator. Nor did Zeigler support his arguments for testing of Eunice, the court said. Thus, it upheld the denial of further testing.

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February 13, 2013

Florida Supreme Court Finds Prosecutor’s Comment Was Not Improper – Bell v. State

The Constitution guarantees criminal defendants the right to remain silent—but it doesn’t guarantee that the choice to invoke that right won’t be damaging. In Bell v. State of Florida, the Florida Supreme Court ruled that a prosecutor’s comment on the lack of refuting evidence couldn’t be interpreted as an impermissible comment on the defendant’s failure to testify. Gary Fontaine Bell was being prosecuted for lewd and lascivious molestation of a victim under the age of 12, and also for failure to appear at a previous hearing. Bell’s prosecutor stated during closing arguments that “So without any evidence contradicting [state’s evidence], the State has proven to you beyond a reasonable doubt” the victim’s age. Bell appealed that statement as an improper comment on his lack of testimony. The First District Court of Appeal disagreed and so did the Florida Supreme Court.

During voir dire in Bell’s case, the prosecutor asked the jury panel if they would be unwilling to convict based only on the word of a child. Bell objected, saying this was a backhanded way to ask for a promise to convict. The trial court denied a new panel and the case went to trial, using videotaped and live testimony from the victim as well as testimony from her mother (Bell’s ex-wife). Bell did not testify in his own defense, although other witnesses did. During closing arguments, the prosecutor told jurors that the victim’s age was one element of the crime, and that “without any evidence contradicting [state’s evidence], the State has proven to you beyond a reasonable doubt” her age. The state also made favorable comments about the victim’s credibility and noted that Bell presented no evidence of his state of mind. Bell moved for a mistrial, arguing that this was an attempt to weaken the standard of proof and a comment on his remaining silent.

Bell was denied a mistrial in trial court, and again at the First District Court of Appeal. His appeal to the Florida Supreme Court also failed. The high court found that the first comment, on the victim’s age as an element of the crime, could not reasonably be interpreted as a comment on his right to remain silent because more than one person could give testimony as to the victim’s age. It did agree that the comment that it was the victim’s word against Bell’s not-guilty plea was improper. By noting that the not-guilty plea was the sum of the evidence Bell presented, the high court said, the prosecutor did comment on his lack of testimony. It applied similar logic to comments that “it’s always one person’s word against another’s” and “there is no evidence that she would have made this up,” saying they could have shifted the burden of proof. However, it found no fundamental error resulting from the comments—and, it noted, Bell failed to preserve arguments on the issue. Thus, it upheld his conviction and trial.

In my experience, the prosecutor’s comment that it’s one person’s word against another’s is right—even if it did highlight Bell’s failure to testify. Because I defend people accused of this kind of serious sex crime, I know very well that sex crimes are usually a “he said, she said” situation that takes place behind closed doors and often without any physical evidence. That’s why credibility is vital—and that means improper comments can make the difference in the case. Though it may seem small, comments like these are important details and I support challenging them whenever necessary.

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February 6, 2013

Eleventh Circuit Upholds Sentence for Shooting Handgun at Helicopter – U.S. v. McGuire

Under federal law, certain crimes are defined as “crimes of violence” for sentencing purposes. Though this may sound unimportant, avoiding a conviction for a crime of violence is an important part of a criminal defense attorney’s job, because such a conviction triggers a harsher sentence and can lengthen sentences for any future convictions. That’s likely one reason for the appeal in U.S. v. McGuire, a recent opinion from the Eleventh U.S. Circuit Court of Appeals. Jason McGuire of central Florida shot one bullet from a handgun in the direction of a police helicopter. On that basis, a jury convicted him of attempting to damage an aircraft, and the judge determined that this was a crime of violence. In an opinion authored by retired Supreme Court Justice Sandra Day O’Connor, sitting by designation, the Eleventh Circuit affirmed both the sentence and the conviction.

McGuire became depressed after losing both his girlfriend and his job. Drunk and unhappy, he took his father’s loaded revolver from an unlocked safe into the driveway. After placing several phone calls but not being able to find a ride, McGuire decided he couldn’t face suicide and instead fired several shots down the street and into a nearby tree. Neighbors called the police, and McGuire went back inside. When he left the house again, he found officers on the ground and a police helicopter in the air, shining a spotlight on him. McGuire fired toward the helicopter. McGuire claimed at trial that he fired the shot randomly, without realizing the helicopter was there; witnesses disagreed about whether he fired in its direction, but agreed it was hard to miss. The jury found him guilty and the judge determined that firing at an aircraft is a crime of violence.

This appeal followed, but the Eleventh Circuit found that a reasonable jury could have found McGuire guilty. Among the witnesses was a sheriff’s deputy who testified that he saw McGuire shoot directly at the helicopter’s spotlight, and the jury was entitled to believe him, the court said. Though McGuire claims this was unreasonable because the helicopter was moving and his arm was not, the court found that this doesn’t require an inference that he wasn’t trying to hit the helicopter—just that he wasn’t successful. The court took more time to reject his argument that shooting at the helicopter was not a crime of violence. To be a crime of violence, a crime must have as an element the use of force or involves a risk of the use of force. McGuire argued that it is possible for non-violent conduct to fall under the law, but the court disagreed, saying harm to crew and passengers is a likely consequence even of disabling an aircraft in flight. At the minimum, the court said, it involves a risk of force, and thus may be a crime of violence.

Some of the rules applied in this opinion seem to considerably broaden the definition of “crime of violence” as ordinary people understand it. For example, the opinion mentions in passing that burglary is a crime of violence because there is a risk that the burglars might commit violence against someone who interrupts them. This seems to be easily extended to all kinds of laws; is there a good chance, for example, that someone might commit violence if interrupted during shoplifting or passing a bad check? I would advocate for a different standard. That’s particularly true when you consider that the sentence enhancement adds 5 to 10 years to the sentence, depending on how a firearm was used in the crime.

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January 29, 2013

Eleventh Circuit Overturns Conviction for Misuse of Federal Funds for Insufficient Evidence – United States v. Jimenez

I was very interested to see a rare Eleventh Circuit decision overturning a conviction for a Florida man accused of misusing federal funds at work. In United States v. Jimenez, Michael Jimenez was accused of failing to disclose a conflict of interests to the Head Start office where he worked. Jimenez is married to Johana Melendez Santiago, who wrote a children’s book about germs. Jimenez suggested to a colleague that Head Start purchase the book, and although many people in the office knew Melendez was married to Jimenez, the office nonetheless decided to spend $9,000 on the book. Jimenez never completed the form disclosing this conflict, and a federal jury later convicted him on criminal charges of misapplying federal funds. He argued on appeal that the evidence of his crime was insufficient, and the Eleventh U.S. Circuit Court of Appeals agreed.

Jimenez first suggested the book to peer Marie Mason, who was Deputy Director of Program Services for Hillsborough County. Mason knew Melendez had written the book. She and Jimenez brought the book to an RN at Head Start, who thought Head Start children were too young for it. She showed it to another employee, who recommended against buying it because it would be a conflict for Jimenez. The two of them brought that concern to the nurse’s supervisor, Ron Knight. But Mason, who supervised Knight, told them to order the book. In May of 2010, Head Start ordered 750 copies. Jimenez failed to fill out the conflict form. Nearly a year later, a grand jury indicted Jimenez, Melendez and Mason for fraud. Mason and Melendez were acquitted, but Jimenez was convicted of honest services fraud and intentionally misapplying funds. The judge granted a post-trial motion for acquittal on honest services fraud, but not the intentionally misapplying count, leaving Jimenez with a sentence of 36 months of probation and $9,000 in repayment.

The statute in question applies to agencies that get more than $10,000 a year in federal funding. Under the statute, an agency employee is guilty of a crime if he intentionally misapplies property worth $5,000 or more that belongs to the agency. The prosecution argued that Jimenez “intentionally misapplied” the $9,000 by causing Head Start to order his wife’s book. Jimenez argued on appeal that the evidence was insufficient to show that he broke this law, and the Eleventh Circuit agreed after consideration. It found that Jimenez never applied or directed any funds in the first place, making it impossible that he misapplied them. Mason asked the nurse to review the book and ultimately authorized its purchase. The Eleventh acknowledged that Jimenez didn’t fill out the conflict form, but said it is “reluctant to metamorphose every municipal misstep into a federal crime.” It reversed the conviction and instructed the trial court to order an acquittal.

I’ve read many appellate opinions arguing that the evidence for a conviction was insufficient, but I rarely see them succeed. Jimenez may have succeeded in his appeal partly because the statute he was supposed to have violated is so vague. As the Eleventh Circuit noted, “intentionally misapplies” is not defined, and courts have struggled to apply it properly as a result. The prosecution’s case would no doubt have been strengthened if Jimenez had done something more obviously corrupt, such as bribe Mason to order the book. But the actual circumstances of the case, without further notice, actually suggest that Jimenez might simply have forgotten to fill out a form. That’s an awfully harsh basis for felony charges.

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January 23, 2013

Eleventh Circuit Sends Back Identity Fraud Case That Used Wrong Sentencing Guideline – U.S. v. Hall

I was interested to read a recent case in which the federal appeals court covering Florida sent back a case for re-sentencing after the trial court may have used the wrong sentence enhancement. In United States v. Hall, Erica Hall was convicted of conspiracy to commit bank fraud and identity theft for her part in an identity theft ring. Hall worked at a obstetric and gynecological office, where she had access to patients’ names, Social Security numbers and birth dates. She provided numerous patients’ identities to her sister-in-law and another conspirator who agreed to pay her for the information, which they intended to use for identity theft. Hall disputed a sentence enhancement for the number of victims, and the Eleventh held that the wrong enhancement was used, and sent her case back for a new sentence.

Hall texted information on 65 to 141 people to her sister-in-law, Bianca Cook, or co-conspirator Rufus Bethea (who paid her, though considerably less than agreed). Using it, co-conspirators used at least 12 of the patients’ information to get fraudulent credit cards. After being caught, Hall pleaded guilty to conspiracy to commit bank fraud, conspiracy to commit identity theft and access device fraud, and health care privacy law violations. Her base offense level at sentencing was seven, but a probation officer recommended enhancements, including one for having more than 50 but fewer than 250 victims. Hall objected to this, arguing that she should be sentenced based on the 12 victims whose information led to false credit cards, not the 141 total whose information was stolen. The district court disagreed, concluding that stealing information for money constituted “actual use” under the law. This appeal followed.

The Eleventh Circuit noted that this issue is novel: does stealing personal information in itself involve actual use for fraud? The court ultimately decided it does not. Application Notes in the Guidelines Manual say that “victim” means anyone whose identification was used unlawfully. Thus, it’s clear that the 12 people whose information was used to get fraudulent credit cards are victims, but it’s not clear that the other people whose identities were stolen qualify as victims for this purpose. The plain meaning of “use” requires action and implementation, it said, which is more than just transferring the item. Thus, the co-conspirators would have had to act on the information Hall provided before it could be said to be “used.” Thus, it found that Hall should have received a lesser sentence enhancement for only 12 victims. Because it wasn’t clear whether Hall’s sentence would have been different, it remanded the case for re-sentencing.

It’s interesting that this case turned on nothing more exotic than the dictionary definition of “use.” Prosecutors can be expected to ask for the longest sentence they believe they can get, but of course, judges should balance those requests with the phrasing of the law. As the Eleventh Circuit notes, Hall’s sentence may not be different on remand, but the decision means that the court will have to apply a two-level enhancement instead of a four-level enhancement, making a shorter sentence likely. In other cases, sentence enhancements can substantially increase a sentence, making their proper application an important matter for criminal defense lawyers like me.

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January 16, 2013

Eleventh Circuit Holds Fair Sentencing Act Must Be Applied When Defendant Convicted After Enactment – U.S. v. McIntosh

It seems clear that if a defendant is sentenced after the enactment of a law that changes how sentencing is done, the law should be applied to that sentencing. But in U.S. v. McIntosh, the Eleventh U.S. Circuit Court of Appeals ruled that James Leray McIntosh must be resentenced. The Fair Sentencing Act was enacted after McIntosh committed the offenses at issue, but before his sentencing. This law changed the U.S. Sentencing Guidelines in a way that should have resulted in a shorter sentence in this case, the court ruled. In its opinion, the Eleventh also rejected an argument from McIntosh that he should not have been sentenced at all, because of government errors that resulted in no indictment against him pending at the time of his sentencing.

McIntosh was indicted in 2007 on one count of possessing crack cocaine with intent to distribute, and one count of possessing a firearm incident to a drug crime. The events leading up to the indictment took place in 2005, but the indictment wrongly said they took place in February of 2007. That mistake was discovered after McIntosh had already pleaded guilty, but before his sentencing. Unfortunately, the government dealt with that mistake in a way that the Eleventh said created further problems: It created a second indictment with the correct dates and then had the district court dismiss the first indictment without prejudice. McIntosh responded by entering a conditional guilty plea on the new indictment, but reserving the right to appeal on double jeopardy grounds. In that appeal, prior to this one, the Eleventh Circuit agreed that the second indictment created double jeopardy and vacated the conviction. On remand, the prosecution set a sentencing hearing on the original indictment, but McIntosh objected because that indictment was no longer pending. Over several objections by McIntosh, the court re-sentenced him in December 2010 to the mandatory minimum from before the FSA.

McIntosh's appeal argued that his re-sentencing violated the Double Jeopardy Clause of the Constitution as well as the Fifth Amendment and others; it also argued that the district court had no further jurisdiction. The Eleventh Circuit rejected all of these arguments. On the double jeopardy argument, the court found that the dismissal of the original indictment did not withdraw McIntosh's guilty plea or terminate the case, as he argued, and thus his second conviction was not a second prosecution for the same crime. On the jurisdiction argument, the Eleventh said a defective indictment does not remove a court's jurisdiction. It found no Fifth Amendment problem because while the Grand Jury Clause of that amendment requires an indictment before a defendant may be “held to answer” for a serious crime, sentencing is not being “held to answer.” However, the Eleventh did find merit in McIntosh's argument that the court should have applied the Fair Sentencing Act, noting that the prosecution now thinks so too, after the Attorney General published an opinion requiring it. Thus, it upheld the conviction but remanded for resentencing.

The Fair Sentencing Act was a long-called-for attempt to make sentencing for drug crimes more egalitarian. The possession of crack cocaine used to be penalized more harshly than possession of powdered cocaine, with the result that crack defendants served more time for similar crimes than powdered cocaine defendants. Many people saw a racial dimension to this situation, since crack cocaine defendants are more likely to be African American. The Eleventh Circuit ruled in 2011 that post-FDA sentencing for pre-FSA crimes should use the FSA, and the U.S. Supreme Court later agreed, along with the Department of Justice. Unfortunately, the change left in place numerous other mandatory minimums for drug crimes, even possession crimes that affect no one else. At Seltzer Law, P.A., we aggressively defend clients accused of drug possession and other crimes subject to our country's draconian mandatory minimums.

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January 9, 2013

Eleventh Circuit Finds Fleeing Police May Give Rise to ACCA Sentence Enhancement - U.S. v. Petite

I've written here before about the use of Florida criminal laws to create sentence enhancements under federal laws like the Armed Career Criminal Act. These laws typically use language like "serious crime" or "violent felony" to encompass state criminal codes without having to name them all, and as a result, they can be difficult to interpret. In United States v. Petite, defendant Michael Petite challenged his sentence for felon in possession of a firearm, which was substantially enhanced by the use of the Armed Career Criminal Act. The ACCA is used when the defendant has a prior "violent felony," and the central Florida trial court found that Petite's conviction for fleeing from a patrol car qualified. In its opinion, the Eleventh U.S. Circuit Court of Appeals agreed.

Petite was arrested in 2010 as part of an undercover drug investigation, carrying less than a gram of crack cocaine and a loaded revolver. He had multiple felonies on his record already, so he was indicted and charged with being a felon in possession of a firearm. Petite pleaded guilty, and the pre sentence investigation recommended a sentence enhancement under the ACCA because he had previous felony offenses out of Pinellas County. Those offenses were robbery, sale of cocaine and fleeing and eluding a police officer. This enhanced his sentence by 10 levels, leading to a guidelines sentencing range of 188 to 235 months of imprisonment. Before and during the sentencing hearing, Petite objected unsuccessfully to the use of the fleeing and eluding prior as a violent felony. He nonetheless received 188 months in prison and now appeals.

In reviewing, the Eleventh Circuit scrutinized whether the Florida statute met the federal definition of a violent felony. The Florida law makes it a third-degree felony to willfully attempt to flee a police officer in a marked car with siren and lights activated. An aggravated version of that offense, with which Petite was not charged, makes it a more serious crime to flee in such a way and also drive recklessly and/or cause bodily injury or death. The ACCA, in turn, makes a crime a violent felony if it involves conduct that presents a serious potential risk of injury. That language has been interpreted four times in recent years by the U.S. Supreme Court, including in one case involving a "strikingly similar" Indiana statute. That case upheld the use of the ACCA, and the Eleventh likewise found that any form of vehicle flight poses risks similar to the enumerated crimes of burglary and arson. It rejected the argument that the existence of an aggravated version distinguishes Petite's case from the Supreme Court case, saying it was irrelevant for ACCA purposes.

This decision is actually the second to interpret Florida's fleeing and eluding law after the Supreme Court decision on the Indiana law, though it's the first in the Eleventh Circuit. In U.S. v. Hudson, the Fourth U.S. Circuit Court of Appeals also concluded that fleeing and eluding a police officer in Florida is a violent felony for ACCA purposes. I wrote then that I disagreed, and I still do. Prosecutors in Florida who believe the defendant has put others in jeopardy can choose the aggravated crime. We can only assume that if they didn't do so, they believe they can't get a conviction for the aggravated crime, which in turn means there wasn't a risk to others. Though the Eleventh Circuit finds that irrelevant in light of the Supreme Court case, that case involved an Indiana law with no higher punishment for more reckless driving. The law should recognize that these distinctions are meaningful when deciding whether fleeing and eluding puts others in danger to the same degree as another crime.

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January 3, 2013

Defendant in Sex Trafficking Case Did Not Waive Appeal But Appeal Meritless - In re Sealed Case

Financial restitution orders are common in serious sex offenses involving minors. Victims' rights laws permit minors who are victims of certain crimes to seek restitution for many financial costs created by the crime, which can include medical and mental health treatment, basic living expenses and more. Defendants are able to challenge these restitution orders, of course, but as with drug crimes, the challenges are often not successful. In In re Sealed Case, an unnamed defendant appealed to the D.C. Circuit Court of Appeals challenging order to pay $3,892,055 in restitution. The government argued that he had waived his appeal. The D.C. Circuit disagreed, but ultimately rejected the defendant's arguments on the merits.

The defendant pleaded guilty to four counts of sex trafficking of minors. He was accused of, and admitted to, prostituting four underage females in Washington, D.C. His plea agreement included a section notifying him that the court must order him to make financial restitution, and also a waiver of his right to appeal the sentence under most circumstances. He was sentenced to 20 years in prison. A separate hearing established that the defendant must pay six or seven figures to each of the four victims, for mental health, attorney fees and as reparations for "ill-gotten gains." The defendant appealed the total bill, which was nearly $4 million.

The D.C. Circuit started its analysis by finding that the defendant did have a right to appeal, despite the waiver. The plea agreement was a long and complex document, the court said, and the relevant language discusses the defendant's rights to appeal a sentence involving prison, fines and/or supervised release. The only mention of restitution is a warning that it may be ordered, which the appeals court found was not the same as a waiver of the right to appeal it. Indeed, other language suggests that forfeiture or restitution waivers are treated separately. Having allowed the challenge, however, the D.C. Circuit found no merit in it. Restitution need not be calculated exactly, but should be calculated "with reasonable certainty." Thus, the court said, there was no need for the expert making the calculations to take into account the victims' previous traumatic experiences. Nor was it error that the court didn't find out whether the victims are interested in mental health treatment. The length of the prostitution doesn't change the dollar amount, the circuit court said, because PTSD can develop quickly. And the victims' grand jury testimony was not unbelievable or unreliable as a basis for restitution.

Because of the kind of crime this is, it may have been inevitable that the defendant would be ordered to pay restitution. Federal law requires restitution--it is not merely allowed, but mandatory. This is one of the many, many reasons why it's best to avoid a conviction for serious sex crimes to begin with. Once the prosecution has a criminal conviction, the restitution order is required. So, too, are a number of other life-altering consequences, such as inclusion on a sex offender registration list, with restrictions on the defendant's rights and residency and requirements to check in with police. A strong defense of the underlying criminal charges against you can not only avoid prison, but sometimes also protect your finances and civil rights.

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December 27, 2012

Divided Florida High Court Rules Defendant Is Not Mentally Retarded - State v. Hall

As fans of criminal defense law know, the U.S. Supreme Court has ruled that states may not put mentally retarded defendants to death. Not surprisingly, this has generated more death penalty appeals from defendants who--rightly or wrongly--contend that they are unfit for execution because of their diminished mental capacity. In State v. Hall, defendant Freddie Lee Hall argued that his death sentence should be vacated because a court had previously found him mentally retarded. A majority of the Florida Supreme Court disagreed, saying competent and substantial evidence was heard in lower courts that Hall was not retarded. A dissent argued passionately that he is.

Hall was sentenced to death for the 1978 murder of Karol Hurst. Direct appeals were exhausted early, but a federal habeas petition resulted in an Eleventh U.S. Circuit Court of Appeals order to hear evidence related to his absence from the courtroom and the effectiveness of his counsel. That hearing was fruitless, as was Hall's first petition to this court. However, his second petition resulted in a holding that errors at his trial were not harmless, and his case was sent back for re-sentencing. At that re-sentencing, the court again sentenced Hall to death, but held that he was mentally retarded and that this was a mitigating factor. A third trip to the Florida Supreme Court resulted in a holding that Hall was competent but mentally retarded. After the Supreme Court decided Atkins v. Virginia, Hall moved to vacate his sentence, resulting in the instant case. Over his objection, the trial court relitigated his mental retardation and denied relief.

On appeal, Hall argued that the trial court erred in picking an IQ of 70 as a cutoff for finding mental retardation, because a more appropriate standard would provide for a scoring range. A Florida law provides a definition of mental retardation, the court said, and it has survived several challenges claiming it's inconsistent with Atkins. It declined to revisit the issue. The court next dismissed Hall's arguments that he should have been able to introduce evidence that he met the second and third parts of the mental retardation test, saying Hall did not meet the first and thus, further inquiry was useless. Another piece of unadmitted evidence said Hall's IQ was 69; the high court said it was not error to not admit it because it was not competent evidence. Finally, the Florida Supreme Court ruled that it was not error to relitigate the issue of Hall's mental retardation, saying it had to be relitigated to meet post-Atkins standards.

One dissent to this opinion takes issue with the "absurd" result, given Hall's background; the other argues that the IQ cutoff of 70 is inconsistent with Atkins. Given the importance and passion connected to the death penalty, the dissents may be attempting to set up the case for an appeal to the U.S. Supreme Court. Homicide cases like this one frequently result in multiple appeals, as the record in this case shows, and the Supreme Court turns away death penalty appeals often. However, this case may get more attention because it creates an opportunity to clarify the Atkins ruling. A ruling clarifying the standard for finding mental retardation, particularly if it takes previous rulings into account, would apparently ease a burden on Florida courts.

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December 19, 2012

Florida Supreme Court Strikes Down Noise Law As First Amendment Violation – State v. Catalano

Constitutional law comes up plenty in criminal defense law, but most often, it comes up in the context of unreasonable search and seizure or the right to a speedy trial. So I was interested and pleased to see that the right to free speech was the reason that a Florida state law was struck down last week. In State v. Catalano, Richard Catalano and Alexander Schermerhorn were convicted separately of violating a state statute forbidding loud car stereos that are “plainly audible” from 25 feet or more away from the vehicle. Both pleaded not guilty and moved to dismiss because the law was unconstitutional, but ultimately pleaded nolo contendere and reserved the right to appeal. The Second District Court of Appeal agreed that the law was unconstitutional, and after review, the Florida Supreme Court agreed.

Catalano was cited in 2007 and Schermerhorn in 2008. The 1990 law they were accused of violating forbade car stereos audible at 25 feet or further or that are “louder than necessary” when outside churches, schools or hospitals; it makes an exception for law enforcement and vehicles used for business or political purposes. They moved to dismiss their citations in separate county court cases, but those motions were denied based on a 1998 Fifth District Court of Appeal case. Instead, they pleaded nolo contendere, received withheld adjudication, and reserved the right to appeal. The circuit court for Pinellas County reversed, citing a Second District Court of Appeal decision saying the law was overly broad. Their appeals were consolidated in the Second District, which nonetheless denied review of the circuit court’s opinion, saying the decision comported with the law and also that the statute is an unconstitutional restriction on content.

The state appealed again to the Florida Supreme Court, asking for a determination on whether the statute is not overly vague or broad and whether the business and political exceptions were permissible. The high court found it was not vague, but it was broad and impermissibly treated different speech differently. On vagueness, the defendants argued that whether a stereo is audible 25 feet away is subjective because it’s determined by an individual law enforcement officer. However, the high court said, exact standards are not required for a finding of constitutionality. They had better luck arguing that the statute was overly broad. Because the statute exempts political and commercial speech, the Supreme Court said, it discriminates according to the type of speech—violating the First Amendment. And because removing the exemption would change the nature of the statute, the court said, it cannot be severed. Thus, it declared the whole statute unconstitutional.

Traffic tickets don’t sound like a big deal, but they can be in Florida, because state law requires authorities to suspend your driver’s license if you have too many unpaid tickets. As a result, traffic ticket defense can become part of defending a charge for driving while license suspended, or another Florida criminal charge. Sometimes, the driver has no idea there’s a problem until he or she is pulled over for unrelated reasons, and then thrown in jail or forbidden from driving home. That’s why it’s vital to address tickets you’d like to fight as early as possible, or get the help of an experienced attorney resolving a series of unpaid tickets.

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December 12, 2012

Search of Cell Phone May Be Incident to Arrest Even When Not During Arrest – Commonwealth v. Berry

One ongoing issue in criminal defense law is to what extent police may search cell phones they find on defendants. The U.S. Constitution forbids unreasonable searches and seizures, but the Constitution was written well before we developed computers small enough to carry around in a pocket or purse, and only a small amount of caselaw addresses the subject. That’s unfortunate, because an illegal search can determine whether or not someone is prosecuted, particularly for crimes that stem solely from possession, such as drug possession or felon in possession of a firearm. So I was interested to read Commonwealth v. Berry, in which the Massachusetts Supreme Judicial Court reversed an order suppressing evidence from a warrantless cell phone search. The decision means prosecutors will be permitted to present evidence found on the phone.

Police were on patrol in a high-crime area of Boston when they noticed a gaunt-looking man nearby. A car pulled up and he got in; the officers followed it as it circled the block several times. When the man got out again, one officer followed him on foot, arrested him and discovered a bag of drugs he had dropped. The other officer pulled over the car, with help from a marked police cruiser, and arrested the driver, defendant Christopher Berry. Both men’s phones were seized. After they were taken to the police station, one officer picked up one of the phones, pulled up the list of recent calls, and dialed the most recently called number; the other phone rang. In trial court, both Berry and the customer moved to suppress evidence from this search, arguing that it was illegal and warrantless. The trial judge agreed, finding the search was not “incident to arrest,” making it lawful to search without a warrant, because it was distant in time and space from the arrest.

The Commonwealth appealed and the high court took up the case from the appeals court. After dismissing standing arguments from both sides, the high court ultimately reversed the partial suppression of the evidence. The phone belonging to Berry was on his person when he was arrested. Under Fourth Amendment caselaw, the court said, a warrantless search incident to arrest may include a search of the arrestee and items found on his person. In fact, the court said, a 1974 case found that a search that could have been made on the spot during the arrest may lawfully take place later, at the police station. Thus, the timing of the search did not render it invalid, the high court said. It went on to find that the scope of the search was also limited enough to make it incident to arrest. As with this year’s Commonwealth v. Phifer, the police in this case pressed one button to see a call list, reviewed it and placed one call; they had reasonable grounds to believe it would reveal evidence of a drug deal. Thus, the court said, this search under these circumstances was legal.

The court in this case took some trouble to emphasize that the result may not be the same under different facts, with a more invasive search or using a different advice. In essence, it was saying not to take this opinion as an indication that all searches of electronic devices will be upheld—and that’s good news for criminal defense attorneys in the state. Though the court found this search limited, I have read about plenty of other warrantless cell phone searches that cross the line. This may provide evidence to support criminal charges, but when it’s an illegal search, an experienced lawyer can get the evidence thrown out of court, and that can destroy or set back the entire case.

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December 5, 2012

Divorce Order May Prevent Taking of Property to Satisfy Criminal Restitution Order – U.S. v. Duran

Restitution orders are a very common part of sentencing for crimes involving theft, including fraud crimes as well as outright theft and embezzlement. However, as with asset forfeiture laws for drug and child pornography defendants, any third party who also has an interest in the asset has a right to challenge the taking in court. In United States v. Duran, the Eleventh U.S. Circuit Court of Appeals ruled that the ex-wife of a defendant may bring a challenge to the federal government’s attempt to take the marital home as restitution. Lawrence Duran was convicted of conspiracy to commit Medicare fraud, and was ordered to pay more than $85 million in restitution. A South Florida district court denied ex-wife Carmen Duran’s motion opposing the government’s attempt to take their apartment, granted to her in the divorce. The Eleventh Circuit reversed this, finding the taking was barred by the Fair Debt Collection Practices Act.

Carmen and Lawrence divorced in June of 2010. As part of the divorce settlement, Lawrence agreed to transfer his interest in a New York City apartment to Carmen. In May of 2011, Lawrence pleaded guilty to 38 crimes related to Medicare fraud and received a sentence of 50 years in prison and $87.5 million in restitution. Five months later, the federal government requested a writ of execution against the apartment to collect its restitution from Lawrence’s interest in the property. Carmen was not served. The next month, however, Carmen moved to stay or dissolve the writ, citing multiple documents showing she had been granted Lawrence’s interest in the apartment during their divorce. The U.S. argued that its lien had priority and Carmen could still collect half of the sale proceeds. The district court denied Carmen’s motion without prejudice, saying it had no jurisdiction to make findings about the divorce and property dispute.

On appeal, Carmen argued that the district court does have the authority under the Fair Debt Collection Practices Act to determine ownership of assets under state law. The Eleventh Circuit analyzed the issue and eventually agreed. The FDCPA is best known as a consumer protection law, but it’s also the law that permits the federal government to satisfy criminal-court financial judgments through civil court. It permits the federal government to levy co-owned property only to the extent permitted by state law in the state where the property is located. It permits courts to deny or limit the government’s remedies at its discretion; it also requires courts to adjudicate ownership disputes because the government may only levy property in which the debtor has a “substantial nonexempt interest.” Thus, the Eleventh said, the district court had a duty to determine whether Lawrence had such an interest. It ordered the district court to, on remand, determine that question as well as ownership of the apartment.

It’s pleasing to see that an apparently innocent ex-spouse has the right to fight taking of her property by the government, for a debt that she is not alleged to have helped create. In general, courts are not always kind to co-owners of assets when it’s time for an asset forfeiture or restitution proceeding. Sometimes, there’s a perception that the claimant is not entirely innocent of the underlying crime. In my opinion as a criminal defense attorney, this is unfair; if the spouse or co-owner is guilty, the government should be able to prove it in a court of law. If not, it’s inappropriate to penalize him or her by taking away property without due process. Everyone should be presumed innocent until proven guilty—especially people who are accused of no crime.

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November 28, 2012

Florida Supreme Court Rules Plea Language Does Not Foreclose Ineffective Attorney Appeal – Hernandez v. State

As a criminal defense attorney who also handles immigration law, I am extra careful whenever I handle criminal cases involving someone who is not a U.S. citizen. Even if you have a green card (lawful permanent residency), some criminal convictions can still qualify you for removal from the United States. This is a serious concern for people who have built families, careers and lives in this country, because one mistake can take it all away. That’s why I was very interested to see the Florida Supreme Court’s decision in Hernandez v. State, a case asking whether a warning required by Florida law is enough to put defendants on notice of the immigration consequences of a conviction. Defendant Gabriel Hernandez made a postconviction motion alleging ineffective assistance of counsel, because he didn’t realize his guilty plea carried a risk of deportation.

Hernandez came to the United States from Nicaragua as a two-year-old and became a green card holder. In 2001, at the age of 19, he was arrested for selling LSD to a police informant, and eventually charged with a Florida state felony. Ten minutes after a public defender was appointed for him, he entered a guilty plea and was sentenced to probation, court costs and substance abuse assessment and treatment. The trial court at the time asked Hernandez if he understood the charges could be used against him in deportation proceedings. However, unbeknownst to both Hernandez and the public defender, the drug crime to which he pleaded is classified as an aggravated felony requiring mandatory deportation, with no eligibility for discretionary relief. Despite Hernandez’s achievements since then—a degree and a career—he was deportable.

In 2010, the U.S. Supreme Court decided in Padilla v. Kentucky that a defendant may file a postconviction motion arguing ineffective assistance of counsel in a very similar situation. Following that motion, Hernandez filed a postconviction motion alleging ineffective assistance of counsel, saying he would not have pleaded guilty if he had been advised that it would mean mandatory deportation. The Miami circuit court denied his motion, saying he had gotten warning from the court in his plea colloquy. The Third District Court of Appeal upheld the decision for a different reason, saying Padilla could not be applied retroactively. This created a split between the Third and Fourth Districts.

The Florida Supreme Court considered both questions: whether Padilla may be applied retroactively and whether the language of the plea colloquy was enough warning to stop a finding of ineffective advice of counsel. In the end, it said no to both—ending Hernandez’s hopes of stopping his deportation, but permitting post-Padilla defendants to try. Under Padilla, the high court said, more warning than the equivocal plea colloquy was required. The colloquy was not meaningless, but a warning that the plea “may be used against [him] in deportation” was insufficient. However, the court found that the rule created by Padilla could not apply retroactively because it was not “a development of fundamental significance.”

I suspect that Hernandez and others facing immigration consequences of a criminal conviction might disagree that Padilla was not a development of fundamental significance. While applying it retroactively would certainly create a lot of new cases, that doesn’t itself make it a bad idea—sometimes, doing the right thing makes a lot of waves. Hernandez, who grew up in the United States and has a career and family members here, faces permanent removal from the United States over what appears to be a youthful mistake. It’s significant that his offense was a drug sales charge, because his crime may have been classified as an “aggravated felony” because of the “war on drugs,” which has inflated the penalties for many nonviolent drug crimes. This is why it’s absolutely vital for defendants facing drug charges, with or without an immigration status problem, to get help from an experienced lawyer.

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November 21, 2012

Eleventh Circuit Denies Sentence Reduction Request Based on Crack Guidelines Change – U.S. v. Berry

Last year, in a development that was very exciting for drug crimes defense lawyers, the U.S. Sentencing Guidelines on crack cocaine were changed. Before the change, defendants accused of possession of crack cocaine were sentenced to substantially more time than those accused of pure cocaine possession. Critics of the situation felt that the disparity reflected racial bias, since most crack cocaine defendants are African American and most cocaine defendants are not. The change applied to future prosecutions, but defendants who had been convicted under the old guidelines are permitted to petition for re-sentencing. One such defendant was Gregory Randolph Berry, whose petition was considered by the Eleventh U.S. Circuit Court of Appeals in U.S. v. Berry. The appeals court ultimately upheld Berry’s sentence, but on grounds unrelated to the guidelines change.

Berry was convicted and sentenced to prison in 2002 for crack cocaine possession. In 2010, Congress passed the Fair Sentencing Act, directing the U.S. Sentencing Commission to reduce the area of the sentencing guidelines for crack cocaine possession that apply to the amounts of the drug. This became Amendment 750 to the Sentencing Guidelines, passed in November of 2011, and later approved for retroactive application. On that basis, Berry moved for a sentence reduction in South Florida district court. His trial was not detailed, but the Eleventh noted that the sentencing court assigned him an offense level of 37 and a criminal history category of VI; both of these metrics help calculate a range of possible sentences. The motion for a sentence reduction was denied in district court.

The Eleventh Circuit also denied it on appeal, saying Berry’s sentence was derived from his prior convictions and status as a career offender. To qualify for a sentence reduction, defendants must have not only had their base offense level lowered, but also had their final sentencing range lowered. If another guideline or law keeps the sentence range the same, the court said, no reduction is authorized. The Eleventh found that this was true in Berry’s case because his offense level and guidelines range were not based on the drug quantity tables that have been amended. Rather, Berry was subject to a statutory mandatory minimum life sentence because he had two prior felony drug convictions. His sentence was also affected by his status as a career offender. Thus, the court said, Amendment 750 was irrelevant to Berry’s sentence range and he did not qualify for a sentence reduction. In so ruling, the Eleventh joined multiple other circuits.

This case doesn’t go into details about the underlying offense, but it would be interesting to know whether Berry’s prior felony drug crimes were related to crack cocaine. This would help make it clear whether the court’s ruling was within the spirit of the Fair Sentencing Act as well as its letter. Many times, people who have prior drug convictions are fighting an addiction problem; a prior drug felony could also be as an accessory or in another situation that does not make the defendant a menace to society. Once these situations are enshrined by convictions, it’s difficult for a criminal defense attorney to get a court to consider mitigating details; the court simply looks at the conviction record. That’s why it’s so important for defendants to get an experienced attorney’s help preventing a conviction in the first place.

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November 14, 2012

Drug Trafficking In Another Country Cannot Be Prosecuted in the United States – U.S. v. Bellaizac-Hurtado

Here in South Florida, we are a kind of a gateway to the Caribbean and Latin America, which means we see a lot of immigrants as well as a lot of travelers to those countries. This is culturally and economically rewarding, but it also means that we sometimes end up as a gateway for international crimes, including drug trafficking. In United States v. Bellaizac-Hurtado, the federal government prosecuted four people who were arrested in Panamanian waters with a boat containing 760 kilograms of cocaine. The Panamanian government consented to their prosecution in the U.S., and a Southern Florida federal court convicted them of violating U.S. drug laws, subjecting them to U.S. prosecution through the Maritime Drug Law Enforcement Act. The defendants appealed to the Eleventh U.S. Circuit Court of Appeals, which agreed that the Act is not an “Offense against the Law of Nations.”

The U.S. Coast Guard was patrolling Panamanian waters in 2010 when it saw a wooden fishing vessel operating without lights or a flag. The Coast Guard alerted the Panamanian Navy, which chased the vessel until its occupants abandoned ship and fled on land into the jungle. Panamanian authorities later sent Yimmi Bellaizac-Hurtado, Luis Carlos Riascos-Hurtado, Pedro Anduigo-Rodallega and Albiero Gonzalez-Valois to Florida for prosecution, where they were indicted for conspiracy and possession of cocaine with intent to distribute. They moved to dismiss, saying the Maritime Act was unconstitutional as applied to them. The district court adopted the magistrate’s recommendation to deny it, reasoning that Congress and several courts have determined that drug trafficking is universally condemned by nations with “reasonably developed” legal systems. The defendants made a conditional guilty plea and appealed after conviction.

On appeal, the defendants argued that this use of the Act exceeds Congress’s Constitutional powers. The Act comes from Congress’s power to “define and punish… Offences against the Law of Nations,” but the Eleventh noted that this is limited by “customary international law.” And the appeals court found that drug trafficking is not a violation of customary international law, because the international community has not treated it as one. Indeed, the court noted, several nations that benefit from the drug trade have ignored relevant treaty provisions. Nor was it a violation when the Constitution was written, the court said, because drug trafficking was not a concern in those days. In so ruling, the majority rejected a concurring opinion saying drug trafficking is not an offense of universal jurisdiction and thus the entire Offences clause should not apply.

This issue rarely comes up in the courts, because of course the vast majority of federal criminal charges apply to events that took place in the United States or the portion of the ocean immediately surrounding it. In fact, the Eleventh Circuit notes that this prosecution is rare because most similar cases are prosecuted under the better-established power of Congress to prosecute “felonies on the high seas.” However, as a criminal defense lawyer, I appreciate that the Eleventh Circuit took a careful approach to giving Congress too much power. As the court noted, a broader interpretation could allow Congress to regulate nearly anything by defining it as an offense against customary international law. That may be an overreach of our power—and it may be looked upon poorly by other nations.

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November 7, 2012

Delaware Supreme Court Reverses DUI Conviction for Improper Admission of BAC – Hunter v. Delaware

As we move into the holiday season, I expect to see an increase in drunk driving charges due to the typical police efforts to step up enforcement of DUI laws. Though many people feel they cannot fight a drunk driving charge when the police have a blood-alcohol concentration sample, in fact, there are multiple avenues to challenge the BAC evidence. The evidence may be unreliable due to mishandling or errors of measurement; it may have been illegally obtained; and it may be inadmissible for procedural reasons. That last issue was raised in Hunter v. State of Delaware, a recent decision from the Delaware Supreme Court. Defendant Cookie A. Hunter was convicted of driving under the influence, resisting arrest and assault. He challenged the admission of his BAC evidence, arguing that foundational requirements for admitting it were not met, and the high court agreed.

When officers stopped Hunter, he said he had not been drinking, but showed signs of intoxication and had open beer cans on the floor of the car. He failed several field sobriety tests, so they arrested him for DUI. Once handcuffed, Hunter began shouting that he was diabetic and needed his insulin pump; he was given the pump, but had to be forcibly re-handcuffed because he became unruly. At the police station, he began physically fighting officers and also claimed he was going into diabetic shock; an EMT said he was not in danger and testified that he was fighting an officer when they arrived. In the course of being taken to the hospital, however, Hunter kicked the EMT in a way that “basically destroyed” his elbow, requiring surgical correction and six months away from work. He attempted to bite an officer later while his blood was being forcibly drawn, and ultimately was tasered twice.

At trial, Hunter moved to exclude the evidence from his blood draw, which showed a BAC of 0.12%, because the blood draw kit had expired two days before it was used. Hunter also alleged that the sample was mishandled because it was shaken vigorously even though the manufacturer’s instructions advised against that. He moved for a judgment of acquittal, but it was denied, giving rise to this appeal.

On appeal, Hunter argued that the expired blood draw kit and the vigorous shaking should have been enough to disallow the evidence produced by the blood draw. The Delaware high court agreed, reversing that part of the decision. The reliability and accuracy of a scientific test is vital to its admissibility, the court said. Relying on a similar case involving the admissibility of BAC test results from an Intoxilyzer breath test, the Supreme Court reasoned that without following the manufacturer’s instructions precisely, there’s too high a risk that a jury might convict using inaccurate information. Thus, it agreed that the evidence should not have been admitted, and reversed and remanded the case.

This is a good example of how drunk driving cases can be defended even when the police have a blood-alcohol concentration test result that is clearly over the legal limit. Hunter never argued that he wasn’t drunk; he argued that his test results were tainted by officials’ failure to follow instructions, and thus were not reliable enough to be admitted as evidence. This follows from one of the most basic principles of criminal defense law, which is that the jury must believe the defendant guilty beyond a reasonable doubt in order to convict. Tainted BAC evidence introduces reasonable doubt—highly reasonable, in some cases. This is more common in intoxicated driving cases than you may think, because police officers and medical professionals are human and make mistakes. That’s why I advise clients not to plead guilty before speaking to me or another attorney.

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November 1, 2012

Defendant Was Not Denied Right to Public Trial by Partial Courtroom Closure – Kovaleski v. State

Under the U.S. and Florida constitutions, everyone who is accused of a crime is entitled to a fair and public trial. However, courtrooms may be closed under special circumstances, and Florida state law includes testimony from a victim of sexual assault as one of those special circumstances. The defendant in Kovaleski v. State, a recent Florida Supreme Court decision, argued that partial courtroom closure in his trial violated his right to a public trial. Anthony Kovaleski was accused of two counts of lewd and lascivious acts on a minor; the judge in his case closed the courtroom pursuant to a state law permitting that closure when the victim requests it during his or her testimony. The Florida Supreme Court found that this did not deny Kovaleski’s right to a fair trial, and it also conformed to the requirements set down by the U.S. Supreme Court in Waller v. Georgia.

Kovaleski had two trials, starting in 1998. At the first, the judge closed the courtroom during the testimony of the victim, J.L., pursuant to a law permitting closure during testimony from sex offense victims under the age of 16. Kovaleski was convicted, but the trial was thrown out on appeal because it became clear that J.L. was over age 16 during the trial, yet the judge didn’t reopen the courtroom or make the necessary findings under Waller. On retrial in 2006, the judge again partially closed the courtroom during J.L.’s testimony, this time pursuant to a law permitting closure at the victim’s request. Kovaleski was again convicted, and appealed the partial closure, as well as some sentencing issues, to the Fourth District Court of Appeal. That court found Waller didn’t apply to partial closures, but did remand for resentencing. Kovaleski appealed.

The Florida Supreme Court upheld the Fourth District, but for different reasons than those the appeals court cited. Waller requires that before courts may be closed, the party seeking closure must show an overriding interest that’s likely to be prejudiced; the closure must be no broader than necessary; the court must consider reasonable alternatives; and it must make findings adequate to support closure. The court found that the state law allowing partial closure during victims’ testimony met those requirements. Protecting victims at their own request meets the overriding interest test, it said; the law is also narrowly tailored because it permits many people to remain in the courtroom, including members of the press. The court found that the “no broader than necessary” test was passed because partial closure was the most reasonable alternative to full closure; and it cautioned trial courts that they must make findings adequate to the fourth prong. Thus, it upheld Kovaleski’s conviction.

Kovaleski was accused of a very sensitive crime: lewd and lascivious acts on a minor. While the opinion in this case spares us the details, media outlets frequently don’t name the victims of sex crimes, in order to spare them the shame and trauma of being named publicly. The same could be said of public testimony, and indeed, many jurisdictions allow private testimony, testimony by video or testimony with assistance. However, this sympathy for the victims must be tempered by respect for the civil rights afforded to all defendants. As this case shows, no matter how serious the accusation is, every defendant has a right to a public trial within the bounds of the law.

Continue reading "Defendant Was Not Denied Right to Public Trial by Partial Courtroom Closure – Kovaleski v. State" »

October 24, 2012

Florida High Court Upholds Finding That Defendant is Sane Enough for Execution – Ferguson v. State

Insanity defenses in criminal prosecutions are notoriously hard to make successfully. Many juries believe people claiming insanity are just trying to avoid responsibility for their actions, which makes them hard to make in a jury trial. Furthermore, the law in many states, including Florida, does not just require that the defendant be diagnosed with mental illness; in many states, he or she must have been unable to tell right from wrong at the time of the crime. Thus, even someone with a diagnosis of mental illness may be sentenced in the same way as someone whose sanity is not in question. In Ferguson v. State, John Errol Ferguson appealed his execution order for killing eight people in Miami-Dade in the late 1970s, arguing that he is not “sane to be executed” under Florida Law. The Florida Supreme Court disagreed.

Ferguson was convicted of two murders totaling eight people. In 1977, he was one of three accomplices who killed six people at a Carol City home known as a place to buy marijuana; the accomplices wanted to rob the dealers. In 1978, Ferguson killed a teenaged couple on their way to meet friends for ice cream; he robbed both and raped the young woman. He was convicted in 1978 and sentenced to death. Ferguson has an active diagnosis of paranoid schizophrenia; he believes he is a “Prince of God” and that God will return him to Earth after his death to foil a communist plot against the United States After Florida Gov. Rick Scott signed an execution warrant, Ferguson’s attorneys filed a claim arguing that he is incompetent to be executed because he is mentally ill. A panel of psychiatric experts examined him and found him sane to be executed. Ferguson then filed in the Eighth Judicial Circuit, which granted several stays but ultimately found him sane to be executed.

In his appeal to the Florida Supreme Court, Ferguson argued that the lower court should not have found him sane to be executed, based on the finding that Ferguson’s delusions are “a manifestation of a normal Christian belief.” The trial court acknowledged that Ferguson had a diagnosed mental illness, but said it didn’t interfere with his understanding of his pending execution. The Florida Supreme Court agreed with that finding, though it said whether his delusions were representative of mainstream Christian thought was irrelevant. To be found insane to be executed, the defendant must be incapable of understanding the death penalty and why it was imposed, the court said. The circuit court had sufficient evidence to support its finding, the high court said, and a 2007 U.S. Supreme Court ruling did not change the standard. It also rejected an argument that Ferguson did not get a full and fair hearing, though the high court did not explain its reasoning. Thus, it vacated the stay and permitted the execution to go forward.

This case has made the media in several places because it involves controversial death penalty issues, and because of the high-profile nature of the original murder crimes. As a criminal defense attorney, my top priority for anyone I’m defending against these serious charges is to avoid a death sentence in the first place, of course. But once someone is convicted and sentenced to death, there are numerous protections in place to ensure that he or she is not sentenced to death unfairly. The U.S. Supreme Court has ruled that executing a mentally ill person violates the Eighth Amendment, but as this case shows, courts require a showing of a particular situation in insanity cases, not just insanity itself. That’s why it’s vital for people accused of serious crimes to get experienced legal representation as quickly as possible.

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October 17, 2012

Eleventh Circuit Finds Search Not Forbidden By Fourth Amendment – U.S. v. Griffin

When I am defending people against serious criminal charges, one issue that frequently arises is whether they were subjected to a legal search. A search by law enforcement is the basis for many arrests; in fact, it may be the only basis for a possession crime. But under the Fourth Amendment to the Constitution, a search must be reasonable, and there is a lot of caselaw dedicated to explaining what is reasonable. When a search is unreasonable, it is illegal and cannot be used as evidence to convict someone. That was the reasoning behind the district court’s decision to exclude evidence in United States v. Griffin, an Eleventh U.S. Circuit Court of Appeals ruling that ultimately reversed that choice. It said the district court did not need to suppress search evidence turned up after law enforcement asked Kareen Rasul Griffin questions unrelated to the reason for the search.

Griffin was stopped by law enforcement officers responding to a call about attempted theft at a children’s clothing store in Jacksonville. A security guard at the store pointed Griffin out, and an officer stopped him. Griffin denied stealing anything, but the officer frisked him anyway and felt what he thought were C-cell batteries in Griffin’s left back pocket. Believing it was odd to carry batteries around, the officer asked Griffin why he was carrying batteries, and Griffin said they were shotgun shells. After determining that Griffin had been convicted of a felony, the officer arrested him. At trial, the district court granted a motion to suppress the statements and search, finding that while the stop was proper, the search might not be, and in any case the questions were unrelated to the purpose of the stop. That made them unreasonable under the Constitution, the district court said, and the “fruits” of the unconstitutional search must be suppressed.

On appeal, the Eleventh Circuit reversed, finding that the questions didn’t change the permissibility of the encounter. It is undisputed that the officer had the right to stop Griffin, the court said, but Griffin argued that the search was also unreasonable because the officer had no reasonable suspicion that Griffin was armed. Under caselaw, the appeals court said, officers don’t need definitive evidence that someone is armed; the test is whether a reasonably prudent person would be correct to believe there was a safety problem. The officer was working alone at night in a high-crime area, the court noted; he had no specific information about Griffin; Griffin was being evasive; and thefts often involve weapons. Finally, it found that the questions unrelated to the suspected theft were not unconstitutional. It said numerous sister circuits have decided that unrelated questions don’t violate caselaw in themselves. Nor did the time required to ask and answer the questions unreasonably extend the stop, it said. Thus, it reversed the district court and remanded the case.

It is disappointing that the appeals court is willing to set the standard for an illegal search so high. Though Griffin was indeed a felon in possession of ammunition, it was invisible and harmless. Authorities may never have noticed if the officer hadn’t gone on a fishing expedition in Griffin’s pockets. While many theft crimes do involve weapons, many others do not; for example, Florida law distinguishes between robbery and armed robbery. And the opinion doesn’t say Griffin was ever arrested for the underlying attempted theft, which makes me wonder if the suspicion of him was correct. As a criminal defense attorney, and I work hard to ensure that prejudice doesn’t heap extra legal troubles of this kind onto my clients.

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October 10, 2012

Federal Authorities Arrest Dozens in South Florida for Tax Fraud and Identity Theft

As a criminal defense attorney in Miami, I was very interested to see an announcement that the FBI has made dozens of high-profile tax fraud arrests. As the Miami Herald reported Oct. 10, federal authorities have arrested more than 40 people in South Florida for using stolen personal information to file false income tax returns, then collect tax refund money. The defendants include a Miami Gardens man who is already a suspect in the triple murder of two women and a six-month-old baby. Charges were not yet announced on Wednesday morning, but were expected by the end of the day; reports suggested that they would include charges of identity theft as well as fraud against the IRS.

The Herald did not specify the total number of people arrested except to say it was “more than 40,” but it did highlight the arrest of Lineten Belizaire, 21, who is awaiting trial on a triple murder charge. Belizaire is accused of killing Octavia Barnett, 21; Natasha Plummer, 25; and Carlton Stringer Jr., Plummer’s six-month-old son. He was out on bail while awaiting a trial in state court, but was taken into federal custody for the charges, which the newspaper said include identity theft and tax fraud.

The arrests were made by a new task force focusing on tax fraud in South Florida; the force is a joint effort of local law enforcement agencies with the FBI and the IRS. It was formed after an announcement by the Treasury Department that criminals file 1.5 million false income tax returns a year using stolen identities, receiving fraudulent refunds that cost the federal government $5.2 billion a year. Major cities with the most fraudulent refunds included Miami, with fraudulent refunds of $280.5 million, as well as Tampa, with fraudulent refunds of more than $468 million. Indeed, Miami saw high-profile arrests in August of a tax fraud ring that included former University of Miami football player William Joseph as well as a former NFL teammate of his, William Bennett. To expedite tax fraud prosecutions, the Justice Department agreed in September to permit local federal prosecutors to make arrests without first getting approval from the DOJ’s Tax Division in Washington.

Though the charges are not yet announced, as an experienced defense lawyer, I would expect the defendants to face charges of identity theft and tax fraud at a minimum. The description of this scheme in the media suggests that defendants will be accused of stealing identities, filing false tax returns and cashing checks that rightfully belong to someone else. Depending on the circumstances surrounding the charges, they could also be accused of being part of an organized crime syndicate, mail fraud or even crimes of violence. Filing a false income tax return alone can get the accused up to a year in prison for each false return; identity theft of this magnitude can get the accused as much as up to 15 years in prison. These are very serious charges, which is why it’s absolutely vital for these defendants to hire an experienced criminal defense attorney as soon as possible. Seltzer Law, P.A., represents clients facing serious federal charges including tax charges and identity theft, and we strongly advise anyone accused to start organizing a defense right away.

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October 3, 2012

Florida Supreme Court Rejects Attorney’s Bid to Continue Representing Death Penalty Defendant – Gill v. State of Florida

Anyone accused of a serious crime needs a defense attorney, but death penalty defendants have everything at stake. That’s why the defense attorney in Gill v. State, a recent Florida Supreme Court decision, objected when defendant Ricardo Gill suddenly fired him and waived postconviction court proceedings. Attorney D. Todd Doss was appointed to represent Gill in postconviction proceedings, but Gill fired him after a court hearing to ensure that Gill was competent to do so. Doss appealed that decision to the Florida Supreme Court, arguing that Gill was not competent to waive his rights and that his hearings were not constitutionally adequate. The Florida Supreme Court affirmed the waiver, finding no problems with Gill’s hearings.

The opinion doesn’t say why Gill was sentenced to death; his conviction was affirmed on appeal in 2009. Shortly after Doss was appointed to represent Gill, Gill moved to discharge Doss and waive postconviction proceedings. The lower court held a combined competency, Durocher and Faretta hearing and ultimately agreed to discharge Doss. Both Doss and Gill filed notices of appeal, but only Doss filed a brief in the case. Doss’s brief contends that the hearing was unfair because one expert witness at the competency hearing was unfamiliar with competency hearings, and that both experts were denied a chance to review Gill’s medical and disciplinary records from the prisons, because Gill preferred to keep them confidential. Doss also alleged that Gill behaved bizarrely—no details were provided—and had told the experts he had not researched appellate procedure before waiving the postconviction proceedings.

The Florida Supreme Court rejected this appeal. For starters, it noted that the claim was not properly preserved for appellate review, and thus was not properly before the court to begin with. In addition, it said, the trial court was correct to admit the first expert, who had testified at competency hearings in the past; appeals courts may reverse decisions to admit expert witnesses only on a clear showing of error. It also ruled that the trial court did not err when it excluded the medical and disciplinary records; the high court noted that this was not preserved for appeal and also was done at Gill’s direction. Finally, it disagreed that Gill was not competent to waive his rights, noting that his competency was evaluated in 2005 and that decision was affirmed in an earlier trip to the Florida Supreme Court. Thus, it upheld the dismissal of Doss.

The courts have clearly spoken, but I sympathize with Doss. When a defendant faces murder charges or the death penalty (not an uncommon sentence for those convicted of murder), the system should be very sure he or she is competent before permitting him or her to dismiss a defense attorney. To do anything else would run the risk of sentencing someone to death without an adequate defense, in a system that is often stacked against even those defendants who are clearly competent. For that reason, the justice system permits numerous proceedings for those sentenced to death, including the postconviction proceedings at issue here. Defendants who are charged with very serious crimes like sexual assault, murder, armed robbery and felony assault should get the help of an experienced defense lawyer as early in the process as they can.

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September 28, 2012

Eleventh Circuit Sends Back Sentencing for Fleeing and Eluding Defendant – U.S. v. Johnson

In the course of my job defending clients from serious criminal charges, I defend a lot of clients who are accused of fleeing from police in the course of another crime. Many states, including my own state of Florida, make it a crime to flee from police at high speeds, reasoning that this puts the officer and the public in danger. In federal court, however, this can be penalized with an enhancement of the sentence for the underlying crime, meaning the defendant serves more time on the same charge rather than facing an additional charge. In United States v. Carrell Johnson, the Eleventh U.S. Circuit Court of Appeals rejected this kind of sentence enhancement, finding that prosecutors provided insufficient proof that the defendant bore responsibility for the driver’s dangerous conduct.

Carrell Johnson helped another defendant rob a drugstore in Atlanta, and then was a passenger in the getaway car. To escape police cars that had surrounded the store, they rammed one car, sped and ignored traffic signals, causing such chaos that police called off the chase. After they crashed and were apprehended, Johnson pleaded guilty to what was presumably his part of the robbery: interfering with commerce by threats or violence, brandishing a firearm, and being a felon in possession of a firearm. His sentence was then enhanced by two levels for “recklessly creating a substantial risk of death or serious bodily injury” while fleeing from law enforcement. Johnson objected to the reckless endangerment enhancement several times, but the district court overruled.

In his appeal to the Eleventh Circuit, Johnson argued that his sentence was procedurally unreasonable because the district court did not support the sentence enhancement with fact-finding, and also should have made a specific finding as to the application of the reckless endangerment enhancement. The Sentencing Guidelines permit application of the enhancement for conduct the defendant “aided and abetted, counseled, commanded, induced, procured or willfully caused.” The Eleventh had addressed the situation in a previous case, and sent that case back for the trial court to consider whether the defendants had done any of those things toward the dangerous conduct at issue. The same applies to this case, the Eleventh said. Prosecutors must show that Johnson directed the car chase in some way, not just that he helped plan the robbery itself. From the current record, the Eleventh said, that wasn’t shown. Thus, it remanded the case for a new sentencing that answered those questions.

As a criminal defense attorney who handles robbery charges and other serious crimes, I am pleased to see the Eleventh Circuit establishing a standard for this sentence enhancement. A two-level sentence enhancement leads to more years in prison, so looking into whether Johnson was actually guilty of dangerous fleeing is extremely relevant to his civil rights. The prosecution is required to actually prove its allegations in every case, in fact—but sometimes, dislike of the underlying crime can lead to careless mistakes in the trial court. That’s why it’s absolutely vital for defendants accused of serious crimes like armed robbery to get help from an experienced lawyer who knows how to protect their rights.

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September 21, 2012

Florida Supreme Court Rules Juveniles May Be Charged With Battery by a Detainee – Hopkins v State

As a juvenile crimes defense attorney, I believe we have a separate set of rules for minor defendants because minors are in some ways less culpable for their actions than adults. That’s why I don’t believe laws for adults should be applied to minors, at least under most circumstances. That’s why I was interested to see the Florida Supreme Court’s decision in Hopkins v. State, a case involving a juvenile detained in a juvenile detention center. Laveress Hopkins challenged the charge against him of battery by a detainee, saying detention in a juvenile facility was inadequate to support the detainee charge. The trial court dismissed, following a First District Court of Appeal decision, but the Fourth District overturned it and the state Supreme Court upheld that decision.

Hopkins was detained at the St. Lucie Juvenile Detention Center when the new charges arose; the circumstances were not described in the opinion. However, the use of the “battery by a detainee” charge enhanced the offense from a first-degree misdemeanor to a third-degree felony. Hopkins moved to dismiss, relying on the First District Court of Appeal’s 2003 decision in T.C. v. State, which held that the charge was inapplicable to juveniles in juvenile detention facilities. The trial court disagreed with T.C. but felt bound by it and dismissed the case, urging the state to appeal. The Fourth District Court of Appeal did take up and reverse the case, finding that there existed contradictory cases that were on point. Hopkins appealed to the Florida Supreme Court.

That court affirmed the Fourth District’s ruling calling for reinstatement of the battery charge. The relevant law (section 784.082) applies to “a person who is being detained in a prison, jail or other detention facility...” The state high court found it clear and unambiguous that a juvenile detention facility could be classified under “other detention facility.” It also noted that the statute uses the word “person,” showing that the law is not limited to adult detainees. Furthermore, it noted, the law’s preamble specifically noted juvenile crime as a reason for enactment. Hopkins argued that the rule of lenity should apply to exclude juveniles from the law, but the court ruled that the rule was inapplicable, since the statute was not subject to differing reasonable interpretations. Thus, it upheld the Fourth District.

One thing about this case that interests me as a criminal defense lawyer here in Miami is the difference this makes for Hopkins. A first-degree misdemeanor is just below a third-degree felony in terms of seriousness, but a felony conviction carries several consequences that a misdemeanor does not. If you are convicted of a felony, you must disclose it on many job applications, which can hurt your chances of being hired. Felonies can also disrupt your right to vote and own a firearm, and of course, a felony carries additional time in prison. All in all, as a juvenile crimes defense lawyer, I am not surprised that Hopkins sought to exclude the charge against him from the enhancement. For a minor under the age of 18, these are heavy penalties that can hurt his adult life before it even starts.

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September 12, 2012

Florida High Court Rules Prosecutors Must Prove Status in School Trespassing Case – J.R. v. State

In order to convict anyone of a crime in Florida, prosecutors must prove all of the elements of the crime. Part of my job as a South Florida criminal defense attorney is to point out the flaws in the cases of prosecutors who do not prove all of those elements, because defendants should not be convicted when the crime is not proven. That was the logic behind a recent Florida Supreme Court ruling in J.R. v. State of Florida, in which a minor was adjudicated delinquent for trespassing at a middle school. J.R. was warned twice by Miami-Dade County School Police officers for trespassing at the school before his arrest for the third trespass. In its decision, the Florida high court said prosecutors must show that the officers were designees of the principal before they can convict J.R.

Officers Orlando Gutierrez and Gregory Williams had warned J.R. at least twice before the arrest to stay off the grounds of Ruben Dario Middle School, where he was not a student. After the third encounter, they arrested him and charged him with trespassing “after being warned by the principal or a designee.” After testimony at a bench trial, J.R. moved for dismissal because the state had not presented evidence that either officer was a designee of the principal as required by the statute. This was denied and J.R. was adjudicated delinquent. On appeal, the Third District Court of Appeal upheld the ruling, relying on a similar delinquency case that was itself on appeal to the Florida Supreme Court, D.J. v. State.

In D.J., the high court ultimately found that the status of the person giving the warning was an essential element of the crime, and thus the status must be proven beyond a reasonable doubt. Similarly, the Florida Supreme Court found that the state was required to prove the designee status of the officers in J.R.’s case, and overturned the lower courts. In D.J., the court held that the statute’s wording necessarily implies that the person giving the warning must have been given express or implied authorization from the principal to exercise authority over the school property. No evidence showing this was presented at either trial, the court noted. Mere status as school police officers was not sufficient evidence, the court said, and the trial court did not cite any authority establishing it. Thus, it reversed and remanded the case.

As a Fort Lauderdale juvenile criminal defense lawyer, I applaud this decision. It reaffirms the basic right of all defendants, juvenile and adult, to have the evidence against them proven beyond a reasonable doubt. This is a very important constitutional right for all criminal defendants, but which unfortunately can be overlooked by courts convinced of the defendant’s guilt. Though school police officers may very well have implied designee status from principals, the law requires that prosecutors take the trouble to prove that before they prosecute teens for delinquency or try to convict adults of a crime. As a Miami-Dade criminal defense lawyer, I believe this relatively high standard is the right one to apply when someone’s freedom and future are at stake.

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September 3, 2012

Surprise Turn in the Case of Sanzaro v. United States: 79-Year Old Suspect Surrenders After Hiding Out for Nearly Two Decades

It’s a Florida criminal case like something out of the Godfather – a 79-year-old suspected organized crime boss finally surrenders to police after nearly two decades on the run.

Paul Sanzaro met up with federal agents back in February 1995. At that meeting, the Feds told him that his safety was in jeopardy, because he played a role in a "crime drug ring gone wrong" that had operated in South Florida between July 1994 and January 1996. He and his associates were charged with importing massive amounts of heroin and cocaine and doling out those drugs to dealers. Sanzaro’s co-defendants pled guilty and walked away with big jail sentences. But Sanzaro himself abandoned his family and went on the lam, after he learned that there was a contract on his life.

A Strange Twist in This Florida Crime Story

After years of running, in May 2011, out of nowhere, Paul Sanzaro showed up at the offices of a well-known organized crime attorney, Murray Richman. He reportedly told the lawyer “life on the run is no life at all. I can’t do this anymore.” Sanzaro said, “I’ve got a family I want to see again, I’m sick, I have no money, I look like a bum – I want to have some a semblance of normality again.” Given all the federal charges against Sanzaro, he could face life imprisonment along with a whopping $4 million in fines.

As far as what will happen now to Sanzaro… who knows? From reports, it sounds like he has led a difficult life, to say the least.

If you’re a Southern Florida criminal defendant who has been caught up in a bad situation, such as a drug deal gone wrong, the team here at the Seltzer Law, PA, can help you understand what you might be able to do -- not only to fight your charges but also to get your life back in order.

Take that first step. Connect with our team today at 1-888-THE-DEFENSE (888-843-3333).

August 27, 2012

South Florida "Felony Lane" Gangs Have Expanded Across the Nation, Say Authorities

South Florida “felony lane” gangs have notoriously terrorized victims in Sunshine State for years by using so-called “smash and grab” tactics to steal checks, credit cards, and driver’s licenses. They then use this “stuff” to rob victims in myriad ways.

According to authorities, these thieves are called “felony lane” operators because, when they rob victims of ATM cards, they typically use the outside lane (a.k.a. the “felony lane”) at drive in banks to avoid security camera detection. Investigators believe that many of the criminals have been coming from the Lauderhill and Ft. Lauderdale area, but their smash-and-grab crime spree has now extended well beyond Florida to places as far as away as Wisconsin.

The felony lane criminals are not a gang, per se – they’re just leveraging an organized, tested set of criminal tactics. Authorities believe that many of the robbers are lifetime thieves who use sophisticated methods to avoid detection – such as hiring prostitutes and homeless people to pose for fake driver’s license pictures, so that they can take out credit cards in the names of victims.

The criminals may be diversifying, geographically, to avoid major sentences.

If you're busted and convicted for one minor burglary out of state, you might not face the same draconian charges that you would if you were caught, charged and convicted here in Florida. As one article documented, getting convicted for crimes like burglary in South Florida can lead to massive punishments. For instance, Samuel Jones, a 31-year-old recently convicted of identity theft, got sentenced to 12 years in incarceration… and he still has additional cases pending!

If you’ve been arrested and recently charged…

Perhaps you had a relatively sophisticated scheme running with some trusted associates, or maybe you accidently got dragged into something that escalated quickly beyond your control or understanding. In either case, you need to apply disciplined thought and perspective to your defense strategy to maximize results.

The team here at Seltzer Law, PA, has a wealth of experience representing clients like you. Our goal is not to simply help to you reduce your sentence but rather to give you the tools and resources you need to understand what went wrong in your life, so you can improve your lot and hopefully rebuild your life and career.

Get in touch with us today at 1-888-THE-DEFENSE (1-888-843-3333) for effective, seasoned guidance about your South Florida defense strategy.

August 22, 2012

Disturbing Possible Florida Criminal Charges Against Dr. Michael Berkland

Florida State attorney’s office may file criminal charges against Dr. Michael Berkland, an associated medical examiner who had stored massive amounts of human remains in a storage unit at Uncle Bob’s storage on East Fairfield Drive.

Dr. Berkland alleged conducted autopsies privately for about a decade – from 1997 to 2007 – at Florida funeral homes and other places in Panama City. Like something out of a bad episode of American Pickers, Dr. Berkland’s grisly storage surprise was discovered when a buyer purchased the storage unit in question at an auction. After discovering the remains of over 100 people, including 10 brains and remains of tissues like hearts and lungs, the buyer alerted the Pensacola Police Department.

Dr. Andi Minyard, a medical examiner working with police investigators to try to clean up the mess and understand what happened, said that “it’s a horrible thing to know that your uncle’s brain is sitting in some storage shed that got sold at an auction.”

Dr. Berkland was fired from the medical examiner’s office in 2003 for failing to fill out autopsy reports and for maintaining a big backlog of cases. Minyard said that the reconstructing what happened might be difficult, since “several of the tissue buckets and several of the brains don’t have any labels on them at all, so we have no idea who they would have belonged to.”

The incident highlights how “quirky stuff” can go wrong in your Florida criminal investigation.

Most people – and definitely most defendants – assume that Florida investigators and police and others involved in the system are capable of exhibiting a degree of competency. But as this situation illustrates, strange “stuff” can throw off any investigation and potentially complicate your case in multiple, diverse, and difficult to detect ways.

For instance, if you can show how bad police impacted your case, you might be able to get exonerated or at least reduce your charges… just on the basis of the incompetent police work itself. On the other hand, police or investigatory errors can make your life more complicated and potentially inadvertently lead to unfairly harsh sentences.

To understand your rights and potential leverage, connect with the team at Seltzer Law at 1-888-THE-DEFENSE -- 1-888-843-3333 -- for sound, effective, and clearheaded defense thinking. Call us any time of day or night to schedule your free case evaluation.

August 20, 2012

Important Information about Deferred Action for Youth Policy -- If You're an Immigrant Who Has Been Arrested for a Crime in Florida


The Department of Homeland Security has started to accept applications for an intriguing program for young immigrants called Deferred Action for Youth. The program offers exciting opportunities to young immigrants who want to extend their stay in the U.S. But if you're an immigrant who has been charged with a crime in Florida or elsewhere, you need to be very careful about how/whether you try to participate, even if you were never legally convicted of robbery, assault, or any other felony or misdemeanor.

Deferred Action For Youth: NOT the Same Thing as The DREAM Act

The new DHS program is substantially different from a piece of prospective legislation you may have read about called the DREAM Act. Congress has yet to pass the DREAM Act, which would provide green card, visa, and citizenship status to immigrants who meet certain criteria.

Deferred Action is a more limited program that provides people who came to the United States as kids with a buffer period of two years, during which time they cannot be removed from the U.S. or deported. You can get authorization to work, but you cannot get a green card or visa or naturalization status through this program.

Eligibility Requirements: Pretty Strict

The program is available to young people who are less than 31-years-old, as of June 15th 2012, and who arrived in the United States before their 16th birthday. There are also eligibility restrictions with respect to how long you’ve been in the United States, whether or not you're currently in school, and whether or not you’ve ever been convicted of a misdemeanor or felony.

For a detailed list of requirements, see the U.S. Citizenship and Immigration Services' official website on the program.

Important Caveat, If You’ve Ever Been Arrested for a Florida Crime

Even if you were never convicted of your crime, your applying for the Deferred Action program could inadvertently result in your deportation!

Your immigration case may be highly complicated and nuanced, even if you were only arrested and convicted for a minor problem, such as shoplifting or some other form of petty theft. To that end, it behooves you to connect with a Florida criminal defense attorney, such as a member of the team here at Seltzer Law, PA, to get an informed perspective about your rights and potential responsibilities/obstacles.

Call the team today at 1-888-THE-DEFENSE (1-888-843-333) any time, 24/7, for fast and compassionate assistance.

August 15, 2012

Jim Greer Versus The Republican Party of Florida and John Thrasher: A Florida Criminal Case That Has the Whole State (Indeed, the Whole Nation) Watching

As the clock ticks down to the Presidential election in November – which will no doubt pivot on the choices of swing state voters in the Sunshine State – a divisive Florida criminal case has sparked intense interest among politicos. The case concerns former GOP State Party Chairman, Jim Greer, who got hit with criminal charges back in 2010. Prosecutors alleged that he worked out a secret fundraising contract -- a contract that his fellow state Republicans had no knowledge of. Greer lashed back at his party, accusing the FL GOP of being in state of "turmoil" and alleging that the Florida Department of Law Enforcement's investigation had been orchestrated by rival GOP officials.

Greer’s most inflammatory remarks had to do with his allegation that state party leaders suppressed black votes. He also said that “there was a feeling within the [GOP] that the Tea Party [which has had profound influence over the GOP recently] was just a bunch of whack-a-dos.” John Thrasher, who took over as GOP chairman after Greer resigned, lashed back, calling Greer's accusations “absurd, absolutely absurd” and suggesting that Greer made them only “in an effort to divert attention from himself”.

In response to his own Florida criminal charges -- and battle with the state’s GOP muckety mucks -- Greer filed a lawsuit against his party and Senator John Thrasher. He wants $130,000 that he said he was told he would be able to collect after he resigned.

Lessons from This Big Political Mess, If You or a Loved One Faces Florida Criminal Charges

Whether you were caught shoplifting at a 7-Eleven, or you stand accused of a far more serious crime, like burglary, assault, homicide, or a multi-million dollar computer crime involving a constellation of operatives from around the world, the team here at Seltzer Law, PA, can help you make sense of your situation and build a powerful response.

The infighting among Greer, Thrasher, and other big political honchos effectively illustrates the challenges that almost all defendants face, irrespective of their stature, connections, or understanding of the law.

The reality is that your life gets destabilized on multiple fronts, almost instantly, when you face a criminal charge – even if you're innocent or if you have a powerful defense “at the ready.”

Regaining control and clarity cannot happen overnight. But the team here at Seltzer Law, PA, has resources and skills to help you deal with even the most complicated and “politically electric” situations. Attorney Seltzer and his team have cultivated a reputation for being level-headed, compassionate, and strategic. They can help you figure out the appropriate next steps to best meet your charges. Call the firm today at 1-888-THE-DEFENSE (1-888-843-3333).

August 6, 2012

Gruesome Florida Crime: Two Teenagers Shot in the Back of Their Head, Their Bodies Burned with Gasoline

Execution style killings of two teenagers, Jeremy Stewart and Nicholas Presha, have sparked massive discussions on Florida crime blogs. This terrifying and sad case illustrates how and when the justice system can fail – and the case may have implications for you, if you are trying to figure out what to do about your Florida criminal charges.

According to the Orlando Sentinel, teenagers Stewart and Presha had been best friends… friends who had a taste for skirting the law. They had been once caught stealing a car, and they also broke into vehicles and stole objects, including guns.

On the night of their deaths, Presha and Stewart met up with two men, Hector Rodriguez and Jessie Davis, at a gas station. Authorities believe that Davis and Rodriguez had never met the teens before. The four men got something to eat together at Steak 'n Shake, during which time Stewart and Presha may have tried to sell recently stolen weapons to the men. They all then headed to Stewart's house, perhaps to close the deal.

Could have been a routine sale of illegal arms… but something went terribly wrong.

According to a witness, the two men took the guns from the teenagers, then pointed the weapons at them. They pistol-whipped Stewart, before tying both teens up and tossing them into the back of a car. Surveillance footage shows Davis filling up his tank at a CITGO station (with the boys presumably in his trunk).

20 minutes later, bicyclists discovered the teenagers’ burning bodies near a trail.

Prosecutors tried Davis last year in connections with road rage charges – he allegedly beat a man with a stick after the man honked at him in traffic. But Davis was ultimately allowed probation instead of jail time, in spite of compelling evidence that the man had serious mental instability and delusional schizophrenia.

Currently, Davis and Rodriguez are being held without bond, awaiting charges.

If you or someone you care about faces Florida criminal charges – whether something serious like homicide or assault – or something more minor but also serious, such as misdemeanor theft or possession of narcotics or weapons – the team at Seltzer Law, PA, can help you understand what options might be available to you.

Connect with the team now at 1-888-THE-DEFENSE (1-888-843-3333) for a free consultation.

July 30, 2012

Angry Mom’s Revenge – 11th Circuit Florida Judge Dismisses Excessive Force Charges in Case of Butler v. Sheriff of Palm Beach County and Dorethea Collier

A pistol-packing mom -- who flew into a rage upon finding a nude young man carousing with her teenage daughter -- has been acquitted by an 11th Circuit Florida judge of the Florida crime of excessive use of force.

The incident that kicked off the legal firestorm occurred in early November 2009. 19-year-old Uzuri Collier invited a friend, Larry Butler, over to her house to "watch TV." Shortly after Butler's arrival, the young adults started to engage in sexual relations. But their liaison was short-lived. Collier’s mother, Dorothea, arrived home to find them en flagrante. Her reaction was, to put it mildly, displeased. Here's how the court's decision described what happened next: “Collier discovered Butler stark naked in her daughter’s closet. She yelled at him and punched him one time. Then Collier picked up her utility belt, put it back on, and drew her gun. She told Butler that if he moved or did not follow her commands, she would shoot him.”

Collier, who worked as a corrections officer for Palm Beach County, then called her husband and ordered to him to come home. Then she forced Butler to get down on his knees and handcuffed him, still while at gunpoint. She called her supervisor to ask whether she could file charges against her nude guest. The supervisor said that since Butler had been invited over by her daughter, there was no way she could press charges.

Eventually, Collier relented and allowed Butler to go on his way, humiliated and shaken.

After the incident, Butler filed a lawsuit against Collier and the Sheriff of Palm Beach County, Ric Bradshaw. Collier was arrested and hit with charges of aggravated battery and false imprisonment, but a Circuit Judge dismissed the excessive force allegations, comparing Collier to a character in the lyrics of a famous song by folk singer Jim Croce: “If the allegations are true, Collier’s treatment of Butler was badder than old King Kong and meaner than a junkyard dog…she might have even acted like the meanest hunk of woman anybody had ever seen. Still, the fact that the mistreatment was mean does not mean that the mistreatment was [illegal].”

Lessons for your Florida criminal defense

Even if you acted in an extremely aggressive or negligent manner, you may still have significant defensive options available to you. Understand, however, that time may be of the essence. The quality of legal representation you retain (or fail to retain) can powerfully impact your ultimate sentence – and the course of the rest of your life. The experienced Florida criminal defense team here at Seltzer Law, PA, would be happy to provide a free case consultation to you and give you the peace of mind and perspective you need to move forward with your life.

Call today for your free consultation: 1-888-THE-DEFENSE (1-888-843-3333).

July 23, 2012

Excruciating Florida Criminal Case: A Man Hits and Nearly Kills His Girlfriend’s Son

20-year-old Joshua Carter is behind bars – being held on $500,000 bond – per Florida criminal charges that he hit and nearly killed his girlfriend’s 3-year-old son. Carter faces charges of upgraded child abuse with great bodily harm and neglect of a child. According to a statement from Florida’s Assistant State Attorney, Gary Beatty, “the baby…is in surgery and may not survive…this may very well be a first degree murder case.” The 3-year-old’s mother, Breanna Janae Love, also stands accused of a Florida crime – child neglect.

According to the Titusville Police Department, Carter hit the child last Saturday. Love initially pretended that the assault never happened -- or perhaps she got trapped in the haze of denial. In any event, instead of taking the child to get immediate medical assistance, Love went out to a club. The child had been continuously throwing up -- he could not keep the food down.

Eventually, Love took the boy to her mother’s house. Love’s mom immediately called 911 for help. When paramedics arrived, the child was unresponsive but still breathing.

Horrific Florida Crime: Who Would Hit a 3-Year-Old?

If you stand accused of a crime like assault, burglary, robbery, or possession of drugs or weapons, you are probably pretty scared about what prosecutors might have in store for you. But you are also not without your own moral code. Even if you committed criminal acts – and even if you harmed someone, in so doing – you probably find the idea that a grown man would hit a 3-year-old child abhorrent. Or at least hopefully you do!

The problem for many defendants is that it can be very challenging to get a sympathetic response, even from friends and family members who might otherwise be supportive. When you feel alone and isolated – perhaps more than a little self-hating – you might fail to take actions that you know you need to take to protect your freedom and ensure fair treatment.

Moreover -- and more complicatingly, from a legal point of view -- you might defer talking to a lawyer (such as a member of the team here at Seltzer Law, PA) out of fear of being punished or even out of a subconscious desire to postpone facing reality.

When you defer getting good legal help, you can lose valuable time preparing your case as well as valuable evidence that could help to create or bolster your defense. Moreover, if you flee from police or resist arrest – or do other “dumb things” after your initial alleged crime – you can massively complicate your already likely complicated defense situation.

Your best bet is to find a reputable, compassionate, experienced law firm ASAP and strategize. The team at Seltzer Law, PA, can discuss your Florida crime in full confidence, at any hour of the day or night: Call us at 1-888-THE-DEFENSE (1-888-843-3333).

July 18, 2012

Heartbreaking Florida Crime: Palm Bay Man Confesses to Killing Dad by Pushing Him Down the Stairs

The journey of a Florida criminal defendant can be a rough one, both logistically and psychologically.

If you or a close friend or a family member stands accused of a crime in Miami, like burglary, robbery, assault, or even homicide, you likely understand the visceral fear and other distressing emotions that arise when you contemplate your future.

In that context, let’s consider the story of 38-year-old Michael Whilby of Palm Bay, FL, who confessed last Tuesday to police that he killed his father back in 2008… by shoving him down a flight of stairs.

Authorities have not yet said why Whilby confessed, but according to a lieutenant in Connecticut (where the crime occurred) “[Whilby] sought out police in Florida and told them that he had killed his father.”

Whilby’s father, Evans Whilby, passed away in 2008 at the age of 66. At the time, the younger Whilby reported the death and told police that he went to his dad’s home, after the dad had failed to show up for a Las Vegas business meeting. The police said “the evidence at the scene and the lack of anyone confessing led us to no other conclusion [than to believe Michael’s story].”

The motive for the killing remains unknown. Whilby, meanwhile, has been extradited from Florida to Connecticut; he's being held on a $1 million bond to face his arraignment.

An Emotionally Confusing Case: Like So Many Florida Criminal Cases

It seems pretty clear that Whilby’s case is fraught with emotional and psychological implications. Strict Freudians would likely be tempted to reference the legend of Oedipus, the Greek figure, who killed his father and had sexual relations with his mother. But without knowing the details of the situation, it’s really not appropriate to play armchair psychologist.

The case does, however, illustrate how complex Miami criminal cases can be. Even cases that seem relatively “cut and dry” when you see them in the news often hide a lot of “stuff” going on underneath. It’s important to recognize this inherent complexity, since that complexity can influence your legal strategy.

You must prepare effectively to face down and thwart what the prosecutors might throw your way. That might mean surfacing painful memories -- getting really honest about what drove you to commit the crime or about what put you at risk for getting arrested in the first place.

No matter what you did – or what police allege you did – the time to get thorough help is now. Call the Seltzer Law, PA team at any time of day or night at 1-888-THE-DEFENSE (888-843-3333) for a free and confidential evaluation of your criminal defense case.

July 11, 2012

Quartavious Davis v. United States First Time Defendant Gets 1941 Months in Jail: Is This a Fair Punishment for a Florida Criminal Act?

The Florida criminal defense attorneys at Seltzer Law, PA, are always stunned and disappointed to read about overly zealous prosecutions.

Consider, for instance, the case of Quartavious Davis, an African-American charged and convicted of being an accessory in a string of armed robberies in 2010. He and his team robbed Wendy’s, Walgreens, and other establishments around the Miami area.

At the time of the robberies, Davis had been living on a less than $700 a month in Social Security Disability benefits in a low income area of Miami. Five men in total were charged in connection with the armed robbery spree, but only David went to trial: his accomplices all testified against him.

Since David was 18-years-old, and since he did fire off his weapon at least twice during the robberies -- once at a dog, and once at a Wendy’s employee -- prosecutors were able to hit him with multiple counts and treat him as a “habitual criminal” in spite of this being his first arrest and trial.

The other men got nine to 22 years in prison. Quartavious, meanwhile, faces an unbelievable 1,941 months behind bars. That’s about 182 years. For Quartavious to see the outside again, he would first have to become the oldest man of all time and then live another 62 years on top of that… and only then would he be able to get out of jail!

Unsurprisingly, Davis’s conviction is being appealed to the Eleventh Circuit Court of Appeals in Atlanta, Georgia.

Florida has garnered quite a reputation for aggressively prosecuting juvenile criminal offenders. A survey conducted from 1990 through 2009, found that our state had the dubious honor of being home to the most number of juveniles who had been sentenced to life in prison for non-murder crimes.

Some analysts have suggested that Davis’s conviction mirrors the more high-profile (and more widely reported on) case of Marissa Alexander, who was hit with a two decade prison sentence for firing a pistol in the air during an altercation with her abusive husband. Ms. Alexander was not eligible for protection under the state’s “stand-your-ground” law; thus, the 31-year old mom was convicted of felony aggravated assault and hit with the 20-year jail sentence.

What the Cases of Quartavious Davis and Marissa Alexander Can Teach You, If You’re a Florida Criminal Defendant

Whether you're a youthful offender who committed a violent act, or an adult who participated in a cyber crime scheme, you have some very crucial days and weeks ahead of you.

Consider connecting today with the experienced, respected legal team at Seltzer Law, PA. Call us today at 888-THE DEFENSE (888-843-3333) for a confidential, free consultation regarding your potential defensive options and strategies.


June 27, 2012

Could Your Miami Criminal Case Be Compromised by a Tweeting Juror? Florida Supreme Court Weighs in...

If you've recently been arrested and charged with a crime in Florida, you might end up facing a jury trial. If that happens, what are the odds that a juror will blog, tweet or even possibly write an e-book about your case?

That scenario may sound far-fetched. But understand that we live in an era of ubiquitous social media, and many jurors have been recently caught disobeying the court's instructions forbidding the publicizing of information about cases.

According to a Reuters Legal survey from 2010, over the past decade, 90 court decisions have been challenged due to web-related juror misconduct. 50% of these instances occurred from 2008-2010, so clearly this problem is "trending."

In May, Judge José Fernandez (Miami Circuit Court) heard a challenge to a criminal conviction that stemmed from the fact that the jury foreman tweeted about the case.

A March conviction of DUI manslaughter in Florida is similarly up and in the air, thanks to one juror, who couldn't restrain himself from penning an e-book about his involvement in the trial.

According to the Florida Committee on Standard Jury Instruction in Criminal Cases, judges have an obligation to warn jurors against using "electronic devices or computers to talk about [a] case, including tweeting, texting, blogging, e-mailing, or posting information on the web..."

Those instructions were laid out back in October 2010. But apparently they weren't clear enough -- or at least so believes the Florida Supreme Court, which weighed in on the situation earlier in the month. The Court has mandated that jurors now be provided this message twice: once before instructions and once prior to deliberations.

A Florida Judicial Center survey from last year found that 6% of federal judges have noticed jurors disobeying this "no tweeting, etc" rule. When you count the unobserved instances of misconduct, the total number is likely much higher.

What All This Means for Your Miami Criminal Defense Preparation

First of all, if/when a juror misbehaves or fails to follow the court's instructions, you and your defense attorney can leverage that lapse to your advantage.

Secondly, jury trials can get incredibly complicated… and strange and unpredictable.

So while great trial preparation essential -- and you want to find a legal team that boasts the wherewithal, track record and alacrity to prepare for anything -- your lawyer must also be able to pivot and pick up on problems, like a secretly tweeting juror. Both challenges and opportunities will emerge as your case evolves.

The respected, tested team at Seltzer Law, P.A. is standing by to provide a detailed, free consultation regarding your Florida criminal matter. Learn more about us online, or call today, any time of day or night, at 1-888-THE-DEFENSE (1-888-453-3333).

June 20, 2012

A Bizarre South Florida Criminal Case - State v. Lages: Lessons for Your Defense?

The case of 47-year-old Everett Lages is a classic illustration of how Florida criminal defendants can often “dig themselves deeper and deeper,” during a single evening of debauchery and bad judgment.

According to WTSP, a CBS affiliate, the 47-year-old Lages wanted to spend an entertaining evening at the Emerald City Gentlemens Club in Murdock, FL. Nothing out of the ordinary, perhaps. But Lages wanted to bring an extra companion with him – his kitty cat.

That's right: he wanted to take his cat inside the strip club.

Perhaps unsurprisingly, management told Lages that cats weren’t allowed in the strip club, and he was asked to leave. Lages did comply and step outside… but only to call 9-11 in an attempt to get the owner arrested! (On what grounds? Only Lages probably knows.)

The deputies who arrived at the scene met up with Lages, who appeared intoxicated. They told him that he needed to leave the strip club, and they called a taxi to take him home. Instead of cooperating, Lages screamed at the driver and yelled at the police that the club owner had committed a crime by refusing his entrance.

In what was almost certainly a comical scene, Lages continued to dial 9-11, while the police were standing right beside him, telling him to leave.

Eventually, police arrested Lages and forcibly restrained him. His motley charges included trespassing after warning, resisting arrest, disorderly intoxication, and abusing Florida’s 911 system. He was held on a $4,000 bond at the Charlotte County Jail – his poor kitty cat was handed over to Animal Control.

General Lessons for Florida Criminal Defendants

Whether you were arrested for fraud, money laundering, burglary, or some other crime in South Florida, Lages’ sad tale holds some powerful and illustrative lessons for you.

1. Once you “cross the line” into criminal behavior, you may find it easier to commit additional criminal acts – even after the fact – and this can cost you, big time.

Lages already would have been in trouble for abusing the 9-11 system, behaving in a disorderly and intoxicated fashion, and trespassing. But he compounded his legal woes by resisting arrest. Likewise, perhaps you committed an additional crime or two as you fled from the scene of the first crime. These extra charges can stack up and make your defense much harder.

Even hours and days after the fact, you may still continue to make bad decisions – such as fleeing arrest or stealing money to make a getaway or something like that. You need to understand that the time to make sober, strategic, rationale decisions is now. Those “little extra crimes” on top of the crimes you have already committed can translate to extra months or years behind bars. So stop, and get the help you need.

2. You might be surprised by the diverse legal defensive options at your disposal.

The team here at Seltzer Law, PA, has helped South Florida criminal defendants like you deal with an array of troubling, complex, and emotional circumstances. Even if you have done something very bad – and compounded your problems by misbehaving after the fact – our team can walk you through a strategic, coherent course of action, so that you can feel back in control and you can start making proper, purposeful decisions about your future – instead of just “reacting from the gut.”

Call us today to schedule your free consultation at 1-888-THE-DEFENSE (1-888-843-3333).

June 13, 2012

Homicide Conviction in Texting Case: What 18-Year Old's Sentence Means for Florida Criminal Defendants

Last Wednesday, 18-year old Aaron Deveau was convicted of homicide in Massachusetts in a landmark case that could have implications for Southern Florida criminal defendants.

According to reports, the young driver crossed the yellow line of a northern Massachusetts road and hit a car driven by 59-year-old Luz Roman, severely hurting her and fatally injuring her boyfriend, 55-year-old Donald Bowley. After the accident, Deveau allegedly erased his text messages and lied to police. A detective who investigating the accodent told the court that Bowley and his girlfriend had been “almost folded into the floor boards” by the force of the impact of the collision.

In addition to facing a year behind bars -- per the vehicular homicide and texting and causing injury charges -- Deveau also must contend with a driver's license suspension of 15-years.

Can we learn any lessons from what happened to Deveau?

The aftermath of many crimes -- in South Florida and beyond -- is often highly heartbreakingly tragic. Consider Deveau’s case. Jonathan Blodgett, the District Attorney for Essex County in MA, summarized the tragedy bluntly: “A beloved grandfather is dead. A once active woman can no longer work and is still wracked with pain from her injuries and a young man is going to jail.”

Not a great outcome for anyone.

The question for someone like Deveau -- and possibly for you, if you or someone you care about has been accused of committing a crime in South Florida -- is how do we move forward?

How should victims of the crime recover, if that's even possible, and deal with what happened to them? And how should the person or people who committed the crime – or who assisted in its perpetration – deal with their own pain and also make fair reparations to the victim and to society?

These are difficult questions to answer, and every case is different.

If you or someone you care about needs a complete and compassionate evaluation of your defense options, the team here at Seltzer Law, PA, can help you. Call for a free consultation, any time of day or night at 1-888 THE DEFENSE (1-888-843-3333).

June 6, 2012

Miami Burglary Charge or Miami Robbery Charge? Examining Ducas v. Florida to Understand Crucial Nuanced Differences

If you or someone you love faces significant Miami criminal charges -- especially burglary or robbery -- you can learn some key lessons from an opinion filed on April 11, 2012 in the Third District Court of Appeal in the case of Ducas v. Florida.

The defendant, Jules Ducas, entered a CVS Pharmacy in Miami on March 2, 2008, with the intention to rob a store. After pretending to shop for a bit, Ducas went into the counter, pulled a gun on the clerk and demanded money from the cash register. The clerk demurred: he needed tender cash to activate the register. Ducas demanded the clerk provide that tender from his own wallet.

In a bold move, the clerk refused!

So Ducas then turned his gun on two women who had just entered the CVS and demanded cash from them. The women complied. Ducas proceeded to raid the register and flee the store. After some time, Ducas was arrested and ultimately hit with three counts of armed robbery and a single count of burglary. He was initially convicted of all four counts but appealed on three grounds:

1: He said the trial court made a mistake by not allowing him to introduce discovery depositions from the two women -- an attempt to try to show that they had described someone other than Ducas as the assailant.

2: Ducas claimed that the state attempted to introduce hearsay evidence regarding his palmprint near the cash register.

3: Ducas said that the trial court should have acquitted the burglary count because the crime happened in a “public place.”

The Third District Court of Appeals rejected the first two claims but found merit in the third, comparing the situation to a similar burglary conviction reversal in the case of Colbert v. State.

The legal distinction between "burglary" and "robbery" may seem like splitting hairs. But if you face significant Florida criminal charges, like burglary or robbery, the elimination of a single felony count can make an enormous difference in terms of your sentencing.

To get clear on your next steps as a Florida criminal defendant, connect immediately with the team here at Seltzer Law, P.A., for a free and thorough case evaluation. Our team has extensive experience getting results in complicated criminal cases. We can help you feel back in control of your life and equip you with the most appropriate legal strategy.

Call now for help, any time of day or night: 1-888-THE-DEFENSE.

June 1, 2012

Drastic Development in George Zimmerman's Florida Crime Case: 48 Hours to Get Back to Jail

Breaking news in the highest profile Florida criminal case of 2012: George Zimmerman, a Florida man accused in the shooting death of 17-year-old Trayton Martin, has been ordered back to jail. A judge revoked Zimmerman's bond, after prosecutors discovered that the defendant and his wife likely misled the court regarding the existence of a $200,000 Internet account.

Zimmerman faces charges of second-degree murder. He has pled innocent, claiming that he shot Martin in self-defense while on his Neighborhood Watch detail.

The shooting sparked an impassioned national conversation that touched upon numerous hot button issues, including:

• The right to self-defense;
• The prevalence and nature of modern American racism;
• The capacity of the police and justice system to protect the populace and ensure fairness.

Zimmerman wasn't arrested until 44 days after the shooting. This delay sparked protests across the nation, and the fallout ultimately led to the resignation of the police chief of Sanford, FL.

During Zimmerman's April bond hearing, the defendant and his wife claimed access to only very limited funds. Prosecutors now dispute that account. They now say that, at the time, Zimmerman had already accrued $135,000 in a secret account. Prosecutor Bernie De la Rionda did not mince words: "this court was led to believe [Zimmerman and his wife] didn't have a single penny... [what they said was] misleading and I don't know what words to use otherwise than it was a blatant lie."

De la Rionda also said that the defendant failed to disclose the existence of critical documents, such a second passport. As part of his April release, Zimmerman agreed to surrender his passport.

Close watchers believe that this case may not go to trial until 2013. One of the big challenges will likely be finding and selecting an appropriate jury. In high profile cases like this, even ordinarily relatively mundane legal activities, such as jury selection, can become an involved and delicate business.

Lessons from the Zimmerman Case, If You Stand Accused of a Florida Crime

What does the Zimmerman case mean for you, if you or someone you love has been arrested for a South Florida crime, and you're desperate to build an appropriate defense?

1. First and foremost, you must appreciate the level of sophistication that Florida police and prosecutors have developed over the years.
2. To that end, to achieve best results, you need to find a law firm that has the capacities, resources, and experience to help you respond effectively. You must match the prosecution's sophistication with your own defensive sophistication.

The team at Seltzer Law, P.A., can make a difference.

Attorney David Seltzer possesses a deep, practical knowledge of how Florida criminal law works, what incentivizes prosecutors, and how to keep clients feeling secure and confident even under difficult situations.

Find out more about what sets us apart here online, or connect with us today at 1-888-THE-DEFENSE (888-843-3333) for immediate help. We are available 24 hours a day to take your call.

May 28, 2012

The Drumbeat of a Florida Crime: Did Florida A&M Drum Major Ask for the Hazing That Killed Him?

Last November, 26 year-old Robert Champion, a drum major at Florida A&M, lost his life in a tragic case of hazing-gone-wrong. His case took a decisively strange turn last week, when one of the defendants alleged that Champion had asked for the hazing.

"It's a respect thing," said band member Jonathan Boyce, "He was wanting to do it... all season."

A recent New York Times article summarized the brutality that Champion endured: "[As Champion] entered the dark bus, [he] was pummeled with hands, drumsticks, bass drum mallets, straps and even an orange cone. At least 15 band members struck and kicked Mr. Champion as he tried to reach the back of the bus."

Boyce's suggestion that Champion wanted to be subjected to this treatment directly contradicts comments made by the victim's father, who has asserted that his son got hazed precisely because he opposed the ritual, which had become a dark tradition among FAMU's Marching 100 band.

Champion's hazing death became national news not only because of the brutal details but also because of the band's prominence. It is (or at least it was) one of the most renowned institutions of its kind in the country. Among other gigs, the band has played the Super Bowl.

All told, 13 people have been charged in connection with the drum major's death: 11 face third-degree felony charges, while two face misdemeanors.

If you're a Florida criminal defendant, what lessons can you draw from this tragedy?

#1: Cases have a strange way of getting twisted at the strangest times.

You can never fully anticipate what the prosecution might have in store for you. That means…

#2: Effective preparation is crucial.


The more you prepare, and the more systematically you do so, the more difficult it will be for prosecutors to "catch you off guard" and complicate your defense.

#3: Retaining a reputable, experienced Florida criminal lawyer can mean the difference between a lengthy jail sentence and freedom.

The team at Seltzer Law, P.A. can help you develop an appropriate, systematic, and strategic defense to your charges. Connect with us today online, or call us for immediate free help -- day or night -- at 1-888-THE-DEFENSE (888-843-3333).

May 16, 2012

Florida Supreme Court Sends Case Back for Resentencing Using Mandatory Minimum – Dunbar v. State

As a Fort Lauderdale criminal defense lawyer, part of my job is to defend clients against abuses in the sentencing process as well as the criminal charges themselves. Criminal sentencing has gotten complicated, in part because of increasing numbers of laws created by political figures interested in looking “tough on crime” without care for the consequences of the laws. However, all defendants are entitled to due process of law and to generally have their rights respected by the courts – even when they have been found guilty. That’s why the Florida Supreme Court sent a case back for a new sentence in Dunbar v. State, in which the trial court forgot to orally pronounce a mandatory minimum sentence for Andre Isaiah Dunbar.

Dunbar, of Central Florida, was found guilty in 2009 of robbery with a firearm, grand theft and two counts of aggravated assault with a firearm. No details of the crime were included in the opinion, though the jury did find special circumstances that Dunbar actually possessed a firearm during the robbery and assault. At sentencing, the trial court orally pronounced a life sentence for the robbery charge. However, it failed to include the ten-year mandatory minimum sentence that is required for robbery with a firearm. The court added the mandatory minimum to its written sentencing order later, but Dunbar appealed, arguing that the mandatory minimum should be struck down because it didn’t match the oral sentence, creating two penalties for the same convictions. Dunbar appealed to the Fifth District, which declined to strike it down, finding the written sentence valid as a correction of the invalid oral sentence. For the same reason, it found no double jeopardy violation.

Because this conflicted with a 2010 decision from the Second District, the Florida Supreme Court took up the case. Ultimately, it approved of the Fifth District’s double reasoning on double jeopardy, but disagreed about the cure, sending the case back for resentencing. After noting that federal and Florida state double jeopardy protections are the same, the court outlined caselaw on corrected sentences and double jeopardy. It concluded that the imposition of a more severe corrected sentence does not violate double jeopardy unless it disrupts the defendant’s legitimate expectations of finality. In this case, Dunbar had no legitimate expectation of finality because trial courts have no discretion to vary from mandatory minimums – at least until the time to appeal has run out. However, the court agreed with Dunbar that he had a due process right to be present when the court increased the terms of his sentence. Thus, it upheld the Fifth District’s reasoning (and disapproved the Second), but remanded for resentencing with Dunbar present.

I appreciate the due process aspect of this decision, which at the very least should remind courts that defendants have the right to be present at sentencing. However, as a Miami robbery criminal defense attorney, I am less enthusiastic about the high court’s reasoning on double jeopardy. Though the result may conform to state and federal law, it may open some dangerous doors. For example, the Florida Supreme Court saw no distinction between an increase in a sentence following remand and an increase in a sentence that the court assumes on its own, as long as that’s done within the time required for an appeal. In order for a sentence to be increased on remand, of course, there must be an entire appeal, with all the due process and legal protections offered to parties on appeal. By contrast, a trial court acting on its own offers none of these. As a South Florida assault criminal defense lawyer, I believe criminal defendants’ rights should be protected and subject to court scrutiny just like everyone else’s.

Continue reading "Florida Supreme Court Sends Case Back for Resentencing Using Mandatory Minimum – Dunbar v. State" »

May 9, 2012

North Florida Court Did Not Err in Ending Supervised Release for Domestic Violence – U.S. v. Johnson

Defense of domestic violence charges is a common area of practice for south Florida criminal defense lawyers like me. Domestic violence charges can be especially troublesome because they often come with extra restrictions on the defendant’s movements and legal rights, including a court order to stay away from the accuser and, often, the defendant’s own home. And if the defendant was already in legal trouble or had a family court matter pending, he or she may face further penalties for a domestic violence conviction. That was the case in United States v. Johnson, in which defendant Jyrone Jeremiah Johnson of northern Florida challenged the termination of his supervised release after a conviction for “a single incident of extreme domestic violence.” The Eleventh U.S. Circuit Court of Appeals ultimately upheld that decision.

Johnson was convicted of battering an unnamed woman over the course of several hours over an evening, in an incident that included stepping on her hair to hold her still while he punched her, then dragging her to a sink when she began to cough up blood. Among the physical evidence later found by probation officers were multiple bruises, the imprint of a tennis shoe on her chest and a potentially broken collarbone. After the assault, she sought permission to return to a halfway house where she had lived before receiving permission to live with Johnson. Johnson himself was called to a hearing to decide whether this incident justified revocation of his supervised release. He denied responsibility for the incident. The court ultimately decided that the supervised release should be revoked, which returned him to prison, saying it had no doubt that Johnson had violated the terms of his release.

Johnson appealed the revocation, but the Eleventh U.S. Circuit Court of Appeals found no reason not to affirm the district court’s decisions. It noted that at the hearing, Johnson was represented by an attorney. Neither that attorney nor Johnson himself showed signs of failing to understand, or objecting to, the proceedings, the court said. In addition, the Eleventh said the district court’s ruling was clear, particularly given the simplicity of the issue presented to it. Applying reasoning from caselaw on revocation of probation, the court ruled that the district court met its requirement under the Constitution to give Johnson a written statement explaining the reasons for revoking his supervised release, including the evidence relied on. Thus, it upheld the district court’s decision.

As a Fort Lauderdale domestic violence defense attorney, I represent people who are fighting this kind of supervised release or probation revocation hearing, as well as those who are seeking probation or supervised release for the original conviction. It’s important for defendants to realize that the time they will serve after revocation is based on the original conviction, not on the offense for which the release or probation was revoked. Thus, something as minor as DUI or possession of drug paraphernalia is enough to land the defendant in prison for a substantial number of years, even though the offense itself may carry little or no jail time. That’s one reason why it’s vital for defendants to get the help of an experienced Miami probation violation defense lawyer as soon as possible after being accused of a violation that could lead to revocation.

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May 2, 2012

Eleventh Circuit Remands Marijuana Case for Reconsideration of Evidence Suppression – U.S. v. Noriega

As a south Florida drug possession defense lawyer, I very frequently run across disputes over the legality of search warrants. Because possession alone is enough to create a conviction on drug charges, the case is generally unsustainable without evidence from a search. And if the search was illegal, the evidence from that search should be thrown out, thanks to long-standing civil rights laws. In United States v. Noriega, the Eleventh U.S. Circuit Court of Appeals said the trial court should have considered whether evidence from a potentially illegal search would have been uncovered anyway with a legal search warrant. Jose Noriega of Alabama was convicted of possession of marijuana with intent to distribute, as well as conspiracy, after a search of his home and two associates’ homes turned up evidence of a growing operation. The appeals court sent the case back for more consideration before deciding whether to throw out the evidence.

An anonymous phone call to a drug task force in Mobile, Alabama, said there were growing operations on three properties in a community called 8 Mile. Officers got a search warrant for a property on Jib road and found a growing operation along with a surveillance system and a rifle. On the second property on Chutney Drive, they found Juan Sabino, whose car had been parked at the first property, along with Jose Noriega and Omar Huezo. Determining that the two properties were connected, and concerned that there might be someone armed inside who wished the police ill, officers swept the inside of the Chutney Drive house and found no threat or growing operation, although they found some growing equipment. They also smelled marijuana outside an outbuilding and called a judge to request an oral search warrant for the outbuilding. That building also had a growing operation, as did the third property.

Noriega and six others were charged with conspiracy to possess marijuana and possession with intent to distribute. Noriega moved to suppress the search of the Chutney Drive property, but the district court denied this, saying the search was lawful because “articulable facts” led the officers to fear for their safety. He was convicted and sentenced to 60 months plus the forfeiture of the property.

Noriega contended that the searches of both the home and the outbuilding should be thrown out as violating the Fourth Amendment, which would require courts to throw out the resulting evidence as tainted. The Eleventh Circuit ultimately decided it needed more information before it could decide whether the search was legal. While the Fourth Amendment does prohibit warrantless searches, the court said, it does permit “protective sweeps” like the one officers performed at Noriega’s home and outbuilding. And even if the protective sweep was not legal, the court said, the evidence may still be admitted if prosecutors can show that the evidence was discovered independent of the initial entry. In this case, the court said, the first step is to determine whether there was still probable cause to search Noreiga’s house and outbuilding. Considering the affidavit police submitted in support of their warrant, the appeals court found the controlling issue was whether the officers would have sought a search warrant even without sweeping the house. This is a fact that the district court should find, the Eleventh said, so it remanded the case for that determination before deciding Noriega’s appeal.

These Fourth Amendment questions are an important part of my work as a Miami-Dade narcotics defense attorney. Police are given wide leeway to search defendants’ homes and other areas if they feel threatened, but as the Eleventh noted, this has to be balanced against the defendant’s Fourth Amendment rights. Because police officers are often given more status than criminal defendants, courts don’t always make the right decision. That’s why it’s important for drug defendants to retain an experienced Fort Lauderdale criminal defense lawyer as early as possible in their cases. By challenging illegally obtained evidence, an experienced attorney may be able to stop prosecutions early, or at least preserve issues for appeal.

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April 25, 2012

Florida Supreme Court Rules State May Not Appeal Criminal Sentence for Procedural Errors – State v. McMahon

One of the few advantages that criminal defendants enjoy over the much more powerful prosecution is that the prosecutors have a limited ability to appeal cases. As a result, it’s rare to see a criminal appeal from the state’s attorneys; they must have both the ability to appeal and the facts that make an appeal a good gamble. That’s why I was interested, as a Fort Lauderdale drug crimes defense lawyer, to see a Florida Supreme Court case addressing whether Florida prosecutors may appeal a sentence when the judge improperly started discussing a plea without either side bringing it up. In State v. McMahon, the court also disregarded the Habitual Felony Offender law. Finding that neither fact was enough to warrant an appeal, the Florida Supreme Court sided with the Fourth District Court of Appeal’s decision in the case and disregarded a Fifth District ruling.

John McMahon was charged with possession of cocaine, possession of drug paraphernalia and grand theft, though the opinion didn’t explain the background of those charges. In a hearing in trial court, his south Florida criminal defense attorney told the judge he hoped to resolve the case at that hearing, and that McMahon qualified for a sentence range whose bottom end was 18 months in prison. The prosecution had already put in notice that it planned to seek a habitual felony offender sentence, but the judge told McMahon’s attorney that if McMahon pleaded that day, the judge would not “habitualize” him. McMahon subsequently did plead and receive the minimum 18-month sentence. The prosecution appealed, arguing that the court should not have initiated a conversation about a plea deal but should have granted a hearing on the habitualization. Though it agreed that the plea discussion was improper, the Fourth District Court of Appeal dismissed the appeal, saying the state may not appeal a sentence unless it is illegal, and this one was legal because it fell within sentencing guidelines.

The Florida Supreme Court took up the case, finding this in conflict with a Fifth District decision, State v. Chaves-Mendez, which found an improper plea dialogue was per se reversible error. Prosecutors may appeal sentences in Florida only on the grounds that they are illegal or below the lowest permissible under the guidelines. In the end, the high court found that the improper dialogue did not make the sentence illegal. A 2000 case, State v. Warner, found that any improper judicial involvement in plea discussions would be harmless error — and thus, not make the sentence per se invalid. Thus, the Supreme Court said, Chaves-Mendez was incorrect to hold that improper judicial involvement was per se reversible error, and the Fourth District was right. Next, it ruled that the Fourth District was wrong to find the trial judge improperly initiated the plea dialogue, saying the defense counsel initiated it by saying he hoped to resolve the case that morning. It found that the court did err in not holding a habitual felony offender hearing, but ruled that this also does not make the sentence illegal and appealable.

This decision is good news for criminal defendants and Miami-Dade theft criminal defense lawyers like me. Like every court system in the country, Florida’s court system is somewhat biased toward plea deals. Pleading guilty in exchange for lowered charges or sentences avoids the expense and uncertainty of a trial, and for the courts, it also reduces the backlog of cases that threatens to delay justice. The concern with judge-led plea discussions is that judges may coerce defendants, or seem to, with their authority; the defendant may worry that he or she will be penalized for rejecting the plea deal. And of course, there are good reasons for rejecting plea deals; not every offer is a good one, which is why I always discuss the pros and cons with my clients before making a deal with prosecutors.

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April 23, 2012

Seventh Circuit Twice Vacates Very-Far-Above-Guidelines Sentence for Sex With Minor – U.S. v. Bradley

As a solicitation of a minor criminal defense attorney, I work with people accused of some of the least popular crimes that exist. Of course, no crime is popular in the community, but the attitudes towards people accused of sex crimes involving children are very harsh and punitive. Sometimes, this leads judges to express their feelings in ways that are less than professional, by giving sentences even harsher than the already quite harsh sentencing guidelines require. This may have been the case in United States v. Paul Bradley, a Seventh U.S. Circuit Court of Appeals case involving a man who pleaded guilty to crossing state lines in order to have sex with a minor he met over the phone. The trial court originally sentenced Bradley, of Illinois, to 240 months of imprisonment despite a guidelines range of 57-71 months. After the Seventh sent the case back in 2010, the judge reinstated the 240 months, requiring the Seventh to act again.

Bradley is an Oregon man who met an Illinois minor named T.S. over an adult phone chatroom, which is not unlike an Internet chatroom. Police found the two of them by the side of the road in Bradley’s car, and Bradley eventually admitted he had traveled to Illinois to meet T.S. despite learning T.S. was only 15. Motel records show Bradley had been in a room with T.S. both that night and a previous night, and DNA testing showed signs of a consensual sexual encounter. (T.S., who suffered humiliation at school, in the wider community and from his father after this was revealed, maintained that he was raped and threatened, but the evidence did not back it up.) A search of Bradley’s computer turned up two child pornography images and two stories about sex with teenaged boys. He ultimately pleaded guilty to traveling across state lines to engage in sexual contact with a minor.

His presentencing report identified no reasons for an upward departure from the sentencing guidelines of 57-71 months, though the prosecution asked for an above-max sentence of 87 months. Nonetheless, the district court imposed a sentence of 240 months in prison — 20 years — with 10 years of supervised release. In its December 2010 original decision, the Seventh Circuit vacated this as unreasonable. It cited the trial court’s “unnecessarily harsh and exaggerated” statements at trial, its speculation that Bradley had had sex with a minor before and its lack of conventional justification for departing. It also asked the court to resolve discrepancies of fact in the presentence report when reconsidering. On remand to a new judge, however, the court compared Bradley’s offense to murder and drug crimes, then resentenced Bradley to 240 months and actually increased the supervised release term to life.

Bradley again appealed, arguing that the court could not justify its drastic upward departure and failed to account for sentencing factors. The Seventh again agreed. With such a drastic departure, the appeals court said, it would have expected a description of the judge’s policy differences with the guidelines, if there was one. The court’s main stated reason for departing was the nature and circumstances of the offense, but the Seventh said the court’s actual statements did little more than restate what was implicit in the offense. Thus, it’s not clear what the court felt was different about this case than any other case with the same charge. Nor do other rationales mentioned provide sufficient justification for the departure, the appeals court said, including comparisons to the mandatory minimums for drug or solicitation crimes. Finally, it agreed that the trial court failed to consider some sentencing factors. It remanded the case to district court for resentencing, again.

As a cyber crime criminal defense lawyer, I hope the district court gets the message with this remand. Judging by the record, there are significant questions of fact about Bradley’s conduct and the circumstances of the crime, but neither trial court seemed interested in investigating those facts so it could make a fair decision. Bradley may simply have been unlucky in getting two judges in a row who felt so strongly about child sex crimes, or both judges may have been influenced by local media coverage in the apparently small southern Illinois community. However, neither is a good reason for departing from the sentencing guidelines, as caselaw makes clear. In my work as a sex crimes defense attorney, I rarely see a departure of that magnitude, because it must be well supported by the circumstances.

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April 16, 2012

Federal Drug Enforcement Agents Cracking Down on Synthetic Marijuana in South Florida

As a Fort Lauderdale drug crimes criminal defense lawyer, I was very interested to see an article from the South Florida Sun-Sentinel about an apparent new push to arrest people connected with synthetic marijuana. The substance, or substances, in question are sold in convenience stores across south Florida under names like “Relaxino” and “K2,” but the federal Drug Enforcement Agency contends that they’re not legal and in violation of the federal Controlled Substances Act. A Palm Beach County man who distributes the synthetic marijuana to convenience stores was arrested April 15 after an undercover sting that provided evidence that he was selling it to retail store owners. A spokesperson for the DEA said the agency is ramping up its investigations. Under the circumstances, I suspect others involved in selling, distributing or even using these substances should be careful, even if they thought their activities were perfectly legal.

The arrest was of Joel Howard Lester, 52, a Canadian national who had been living in Boca Raton. Lester met with an agent posing as a retail store owner interested in selling the substances, and ultimately sold the agent 50 one-gram packages that were fruit-scented as well as allegedly laced with synthetic marijuana. Lester is being held without bond on charges of distributing the substances. According to the article, synthetic marijuana is made from synthetic cannabinoids that have been sprayed onto dried plants of a type not specified. Manufacturers use compounds slightly different from those that are banned in Florida in order to keep their substances legal. In response, the state reclassified some of the synthetic substances as illegal early in 2011, with a goal of getting them permanently banned.

The article was unclear on whether or why the substances are federally banned, but a similar article from the Miami Herald on April 13 suggested federal authorities are also trying to keep up with synthetic cannabis makers by banning each new substance they create. That article said the City of Sweetwater is being urged by its police department to ban synthetic cannabis. Sweetwater police officers reportedly staked out a convenience store in the city after being tipped off about unusual activity there. At the stakeout, they observed underage kids and teenagers buying the substances, which were packaged as incense, freely; because they are not tobacco, there s no age limit on buying them. However, authorities told both newspapers that they have health concerns about synthetic cannabis, with reports of heart palpitations, aggression, disorientation, seizures, panic attacks and hallucinations.

As a South Florida drug trafficking defense attorney, I see these reports as a warning sign for anyone with any connection to synthetic marijuana in south Florida. Though the DEA told the Sun-Sentinel that it’s focusing on “large actors,” the state of Florida and municipalities like Sweetwater may be more than happy to arrest users and convenience store owners or workers. All of these people could face serious drug charges for activities they thought were completely legal, and which indeed are legal or were until recently. This could include distribution or even trafficking of drugs for the sellers, and possession of drugs or drug analogues for the buyers — with potential extra penalties if they happened to share with friends. As a Miami marijuana crimes defense lawyer, I am particularly concerned because many of the possessors are reportedly teenagers, which means they could face juvenile drug crimes charges that could hurt their chances of success in college, work or the military.

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April 9, 2012

DEA Announces Investigation of Florida Walgreens Suspected of Connections to ‘Pill Mills’

Here in Florida, abuse of powerful prescription drugs is an ongoing issue. Our state loses seven people per day to Oxycontin abuse alone, prompting a lot of attention from state and federal law enforcement. Prescription drug abuse even became a political issue when Gov. Rick Scott proposed repealing a law designed to track prescriptions for painkillers with high abuse potential. So as a south Florida drug crimes defense attorney, I was interested to read about a federal investigation of six Walgreens pharmacies where sales of oxycodone have jumped dramatically. According to Reuters, the DEA announced April 6 that it has issued inspection warrants for a Walgreens distribution center in Jupiter, in Palm Beach County, and six stores it serves. The move came after the DEA had already suspended licenses to distribute controlled substances at three other pharmacies.

The warrants issued by the DEA are not criminal warrants that must be scrutinized by a judge for probable cause. Rather, they are inspection warrants issued for “valid public interest.” The DEA’s filing in Central Florida federal court says the agency is investigating the top-selling six pharmacies served by the Jupiter distribution center; those are Walgreens stores in Fort Myers, Oviedo, Port Richey, Hudson and two in Fort Pierce. The DEA, which keeps track of retail pharmacies’ sales of drugs with abuse potential, did not list any Walgreens stores in its list of top Florida purchasers in 2009. In 2011, however, the agency listed 38 Walgreens stores in its top 100 purchasers. In January and February of this year, that number jumped to 53 out of the top 100. The article noted that the Fort Myers store was responsible for two-thirds of all the oxycodone purchases in its ZIP code.

The DEA said this volume of oxycodone purchasing could indicate that the pharmacy serves addicted people and the pain clinics that serve them by writing shady prescriptions. With its warrants, the agency will be permitted to examine the pharmacies’ records to determine whether any of the drugs made it to the black market. The pharmacies may operate as normal during the investigation.

As a Miami-Dade federal crimes defense lawyer, I suspect this could be bad news for anyone who is involved in illegal misuse of prescription drugs. As the article notes, the DEA has been cracking down on this type of drug because it’s responsible for so many deaths — and recently, it has focused on enforcement at pharmacies and drug wholesalers that provide the drugs. From there, it’s often easy to track prescriptions in both directions — to the end users as well as to the doctors who prescribe the drugs. As a result, everyone in the supply chain would be well advised to expect a visit from federal authorities. Even those who have done nothing illegal may be subject to probing from authorities to see whether they have anything to hide. This could include overprescribing or unnecessary prescribing among doctors; avoiding reporting and limitations rules among pharmacists; and filling too many prescriptions among patients.

At Seltzer Law, P.A., we represent clients across Florida who are accused of serious state and federal drug crimes. That includes many of the crimes at issue in this article, such as illegal use of prescription drugs and breaking federal laws about dispensing controlled substances. Our lead attorney, David Seltzer, is an experienced former prosecutor with substantial experience handling drug cases of all kinds, including prescription drug abuse cases. Our Fort Lauderdale drugs and narcotics defense attorneys know that law enforcement doesn’t close up the office at 5 p.m. sharp, so we make ourselves available to clients and potential clients at all times — 24 hours a day and seven days a week.

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April 2, 2012

Immigration Authorities Sweep Nation for Aliens With Convictions, Arresting More Than 3,100

As a south Florida immigration criminal defense attorney, I know a lot of my clients keep a close eye on enforcement actions by the U.S. Immigration and Customs Enforcement (ICE, once called the INS). ICE announced in the last few years that it planned to focus its enforcement efforts on “high-priority” aliens who have been convicted of crimes, putting undocumented immigrants without a criminal history the lowest priority for agency resources. Since then, ICE has conducted at least three raids, including a new one announced Monday. According to its press release, ICE’s six-day “Cross Check” operation found immigrants in every state who had been convicted of crimes, were fugitives from justice or had immigration violations. At least 204 of those arrested were offered for prosecution on new charges.

According to ICE’s press release, the agency found a total of 3,168 undocumented immigrants with criminal records, immigration violations or who are immigration fugitives. These included 2,834 with criminal records, slightly more than half of which were felony criminal records. Of those with criminal records, 1,063 had multiple past criminal convictions; 50 were gang members; and 149 were convicted sex offenders. A separate 698 of those arrested were immigration fugitives, meaning they were ordered to leave the country but did not, and 559 had reentered the country after being removed. According to an Associated Press article, San Diego immigration authorities simply tracked targets to their last known addresses, arriving early in the day, before work. In total, the San Diego office targeted 14 immigrants, found six and arrested six others who had not been targeted.

That last fact is a bit disturbing to me as a Miami-Dade criminal defense lawyer. These non-targeted arrestees may be responsible for serious crimes, or they may just happen to be undocumented immigrants living at or near addresses where ICE agents went during the sweep. Though the ICE press release profiles three arrestees who were convicted of or wanted for murder, it also notes that fewer than half of those arrested had felony convictions. Many others may be convicted only of immigration-related crimes, such as possessing forged papers, or minor crimes such as resisting an officer. While these are not good things to have on your record, I suspect most people don’t realize this kind of misdemeanor accounts for such a large part of the reportedly “high-priority” arrests being made.

If you’re an immigrant — here legally or not — and you’re facing legal problems, don’t hesitate to call Seltzer Law, P.A. There are no minor crimes for immigrants, unfortunately; even legal permanent residents can be deported for crimes that might not significantly disrupt the life of a citizen. For those who arrived here without permission, any encounter with the police can be anxious. Our law firm represents clients who are in trouble with immigration authorities because of immigration crimes such as illegal reentry, or other crimes that affect their immigration status. We also represent clients who need the help of an experienced attorney as they navigate the complicated U.S. immigration system to get a green card, work visa or other legal status. Our Fort Lauderdale immigration attorneys represent people in ordinary Florida and federal courts as well as immigration hearings.

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March 28, 2012

Resisting an Officer With Violence in Florida Is a Violent Crime, Eleventh Circuit Rules – U.S. v. Romo-Villalobos

As a criminal defense attorney in south Florida, I have written here before about the crime of resisting an officer, which is really two crimes in Florida. Resisting an officer with or without violence typically means “not doing what the officer wanted,” which in turn means it’s a nuisance charge often brought against people who happened to make the officer angry. Not everything that makes an officer angry is a crime, of course, but having the charges dismissed or dropped can require early and expensive legal intervention. When the charges lead to a conviction, that conviction can lead to all kinds of unpleasant consequences in the future, as a recent case from the Eleventh U.S. Circuit Court of Appeals shows. In United States v. Romo-Villalobos, the court ultimately decided that Hector Manuel Romo-Villalobos had committed a crime of violence because he had a resisting an officer conviction, and upheld his long immigration sentence.

Romo-Villalobos is a Mexican citizen who had been removed from the United States twice before. The first time, the removal was after conviction for false representation; the second time, it was after a conviction for resisting an officer with violence. He then reentered the United States again and apparently was caught again. At his sentencing for this most recent offense, the district court enhanced his sentence by 16 levels because he had been previously deported after committing a crime of violence. It cited his previous conviction for resisting an officer with violence in Florida. The result was a sentence of 37 months in prison, to run concurrently with a sentence of 24 months for illegal reentry after false representation. Romo-Villalobos appealed, arguing that the Florida law did not meet the requirements to be a crime of violence under federal immigration law.

The Eleventh Circuit disagreed that resisting an officer with violence should not count as a crime of violence. Under the sentencing guidelines, a previous deportation for a felony crime of violence will earn the defendant a 16-level enhancement for any new illegal reentry. A crime of violence, in turn, is any crime involving “the use, attempted use or threatened use of physical force.” Federal law instructs federal courts interpreting state laws like this one to use the interpretations offered by the state’s Supreme Court, so the Eleventh turned to the Florida courts’ interpretation of resisting an officer with violence. Florida’s Supreme Court has not decided the issue, but its appellate courts have held that violence is an element of the offense. The state statute itself makes it a crime to resist or obstruct an officer when “offering or doing violence to” the officer’s person. Thus, the Eleventh affirmed the use of the sentencing enhancement.

As a Miami-Dade immigration crimes lawyer, I tell all of my clients to be very careful when they are charged with crimes, because nearly any criminal conviction could threaten a noncitizen’s immigration status. Even a lawful permanent resident — someone who has a “green card” — can be removed for certain crimes. And as this case underscores, it’s not usually clear in immigration law which crimes fall into the category of “crime of violence” or “crimes of moral turpitude” (another category of offense that can lead to removal). This is particularly upsetting for crimes like resisting an officer, since they are largely up to the officer’s discretion. Not every officer uses that discretion carefully; some use the charge as a way to punish defendants they don’t like. As a Fort Lauderdale resisting an officer attorney, I try to fight arbitrary charges like those to get them dropped or dismissed as early as possible.

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March 21, 2012

Florida Supreme Court Rules Correct Address and Notice Enough to Support Suspended License Conviction – Anderson v. State

As a Miami-Dade suspended license lawyer, I know how easy it is to be charged with driving on a suspended license here in Florida. Our state legislature has made many things punishable with a driver’s license suspension, from typical offenses like too many points to an unrelated problem like a child support dispute. A particular problem for Florida drivers is the fact that notices of license suspensions go through the mail, making them easy to miss when the intended recipient has moved or something goes wrong with the mail. So I was interested to read about a recent Florida Supreme Court decision that clarifies when notice of a suspended license can be considered legally sufficient. In Anderson v. State, the court said drivers are considered to know about their suspensions when the state follows correct procedures and the address is proven correct.

Prior to the license suspension, Candie Marie Anderson pleaded guilty to burglary, grand theft and falsification of ownership to a pawnbroker. She received a five-year sentence that was suspended as long as she paid restitution, completed two years of community control and served probation. However, she failed to pay the restitution by a deadline, and this was both a violation of her probation and a trigger for automatic suspension of her driver’s license. The probation officer was informed that Anderson was driving despite the suspension and arrested her at their next probation meeting after she admitted driving there. She claimed she had received no notice of the suspension. After the arrest, she paid the restitution and had her license restored, but still faced the criminal charge. At her probation violation hearing, her attorney argued that the mere fact of mailing the notice to Anderson’s correct address did not support finding she knew of the suspension. The trial court disagreed and reinstated her five-year sentence.

The Fifth District Court of Appeal affirmed, finding that compliance with the notice process outlined by Florida statute is sufficient to show actual knowledge, along with proof that the address is correct. The Florida Supreme Court affirmed again. The law creates a rebuttable presumption that a notice sent to the driver’s current address creates knowledge in most situations, but not in situations like Anderson’s, in which the suspension comes from a failure to pay a fine. Earlier Fourth and First District rulings required prosecutors to prove actual knowledge in such situations, but the state high court disapproved of these and sided with the Fifth. It interpreted the license suspension section of the law together with another section that defines notification as occurring when notice is mailed to the last known mailing address. Thus, the high court said, no proof of actual knowledge is required, and Anderson was validly convicted.

This decision will be hard on Florida drivers who seek the help of Fort Lauderdale driving while license suspended attorneys like me. It’s not hard to think of situations where the DHSMV may send first-class mail with a notice of suspension, but the notice is never actually received. The recipient may move unexpectedly, the mail may fail or there may be bureaucratic records problems that keep the notice from going to the right person. I believe, as a south Florida driver’s license suspension lawyer, that everyone should have the opportunity to prove they genuinely didn’t know the license was suspended. Under this decision, the mere act of mailing can assure a conviction, regardless of what happens next. It’s not hard to see from Anderson’s case that this can be life-changing.

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March 14, 2012

Federal Appeals Court Finds Florida Fleeing and Eluding Law Violations Are Violent Felonies – U.S. v. Hudson

As a Fort Lauderdale firearms crimes defense lawyer, I’m sorry to say that I’ve spoken to numerous clients who don’t realize how serious a firearms charge can be. Florida law has mandatory minimums for firearms violations that can go as high as life in prison, and federal law makes it a crime for someone previously convicted of a serious crime to possess a firearm. In fact, thanks to another law called the Armed Career Criminal Act, an ex-offender in possession of a firearm can face sentence enhancements that put him or her in prison for a decade or more. That was the case with Tory Hudson, who was sentenced to 180 months in prison in U.S. v. Hudson. Hudson had previously been convicted of drug charges and pleaded no contest twice to violations of Florida’s fleeing and eluding statute. He challenged the determination that those pleas counted as convictions for violent felonies, triggering the ACCA.

Hudson’s car was stopped in South Carolina for reasons the opinion did not detail. He was arrested for driving with a suspended license and his car was searched, uncovering a revolver with ammunition. He pleaded guilty to possession of a firearm by a felon and was eventually sentenced under the ACCA to 180 months in prison. The sentencing court relied on Hudson’s past conviction for possession of cocaine with intent to distribute and the two fleeing and eluding no-contest pleas. The fleeing and eluding statute makes it illegal in Florida to flee a marked law enforcement vehicle with lights and sirens activated. Hudson appealed, arguing that the Florida law did not count as a violent felony under the ACCA. His appeal was put on hold for several years pending the outcomes of earlier cases involving the same issue, though under different state laws. After the U.S. Supreme Court’s 2011 decision in Sykes v. United States, the Fourth Circuit took it up.

In supplemental briefing after Sykes, Hudson argued that his Florida convictions were not violent felonies, and that if they were, the residual clause in the ACCA was still unconstitutionally vague. The Fourth U.S. Circuit Court of Appeals ultimately rejected both arguments. The ACCA’s residual clause defines a violent felony to include one that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” In Sykes, the Supreme Court tested whether the subject crime was comparable in risk to the other crimes listed in the statute, which include burglary, arson and explosives crimes. The Fourth said Florida’s statute required a separate analysis because it distinguishes between levels of risk posed by the flight, but ultimately decided that even the base offense poses a high risk. Invoking Sykes and disregarding an Eleventh Circuit ruling on the same law, it concluded that fleeing law enforcement inevitably poses a risk of violence, disregards others’ safety and forces the police to give chase. It then dismissed the vagueness argument as waived, but noted that the Supreme Court has rejected it consistently.

As a Miami-Dade criminal defense attorney, I would have preferred more deference to the Florida legislature on this issue. Florida’s fleeing and eluding law, as noted, has three tiers of seriousness, including the base offense, an offense that involves reckless driving and an offense that causes death or serious bodily injury. As a result, our state already has defined the seriousness of the crime and given prosecutors the option to choose which best fits the circumstances. If prosecutors choose the base offense level, it stands to reason that they don’t believe there was a “serious potential risk of physical injury to another,” as the ACCA puts it. That’s why, as a South Florida criminal defense lawyer, I am pleased that the Eleventh Circuit’s less strict standard applies to Florida.

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March 7, 2012

Convictions Cannot Be Based on Hearsay Testimony From Police, Florida High Court Rules – State v. Bowers

A large part of my job as a Miami drug crimes defense attorney is defending clients against police overreaching in drug arrests. In particular, I often see cases in which the police pull over a driver for vague reasons or no reason, then find the driver in possession of drugs and make an arrest. In this type of case, drivers can and should challenge the legality of the traffic stop, because any evidence from an illegal traffic stop is tainted and cannot be used. That was what Michelle Bowers attempted to do in State v. Bowers, a Florida Supreme Court decision that ultimately concluded that testimony used in her case was illegal. A police officer other than the arresting officer testified at trial, invoking the “fellow officer” rule, but the high court decided that this could not trump the hearsay rule.

The opinion does not describe the original traffic stop, but says Bowers was arrested for DUI, possession of marijuana and possession of drug paraphernalia. She moved to suppress all evidence from the traffic stop, alleging it was illegal because there was no probable cause that she’d committed a traffic infraction. However, when the county court heard the motion to suppress, the arresting police officer did not testify. Instead, the court heard testimony from another officer who was not present at the stop but had handled the subsequent DUI investigation. The Florida DUI defense lawyer for Bowers raised an objection to this testimony as hearsay, but the court ultimately allowed it under the fellow officer rule, which permits police officers to rely on one another’s knowledge and information to establish probable cause for a search. Nonetheless, it found the testimony lacking in details and granted the motion to suppress. The circuit court reversed, finding the testimony admissible under the fellow officer rule, but the Second District Court of Appeal reversed again.

Because this decision conflicted with that of the Fourth District in Ferrer v. State, the Second District certified a conflict among the appeals courts to the Florida Supreme Court. That body ultimately agreed with the Second that the Fourth had wrongly decided Ferrer, impermissibly allowing courts to circumvent the ban on hearsay testimony using the fellow officer rule. In that case, a police officer who had arrived on the scene after the traffic stop was permitted to testify as to the legality of the traffic stop itself, using the fellow officer rule that permits officers to act in the field according to other officers’ knowledge. However, the Second found that this was not a rule of evidence — and the high court agreed. The fellow officer rule doesn’t apply to this situation because the officers weren’t relying on shared information to investigate the traffic stop, the court said; the first officer was the only one who could testify. Finding out information after the fact does not allow a subsequent officer to avoid the hearsay rule, the court noted. Thus, it upheld the Second and disapproved the Fourth.

As a Fort Lauderdale marijuana possession defense attorney, I’m pleased with this decision. In fact, this decision could affect any case that started with a traffic stop, if the defendant can prove that the traffic stop was not legal, such as DUI cases, charges for possession of a firearm, outstanding warrants and more. In many cases, a traffic stop is made under a pretext like an expired registration or a broken tail light, which is technically a violation but not so unsafe that an officer couldn’t let it go. If the officer doesn’t happen to like the look of the driver (or worse), he or she can use this minor violation as an excuse to pull the driver over and fish for a more serious violation. This is the kind of traffic stop so frequently challenged as illegal by Seltzer Law, P.A., and other defense law firms.

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February 29, 2012

Florida Supreme Court Rules ‘Blood, Breath or Urine’ Language Cannot Negate Implied Consent Law – Nader v. FDHSMV

As a south Florida drunk driving defense lawyer, I very commonly see people who wonder whether they made the right decision about whether to submit to a blood or breath test. This is always a tough call because Florida law penalizes drivers for refusing to take a blood-alcohol concentration test. This is called the implied consent law, which means the act of driving in Florida can be taken as consent to submit to a breath, blood or urine test; failure to do so means a driver’s license suspension. However, one Florida appeals court has ruled that the language used by some police departments when they explain this to drivers is misleading. This caused the appeal in Nader v. Florida Department of Highway Safety and Motor Vehicles et al., in which Susan Nader refused a breath test and then challenged the DHSMV’s attempt to suspend her license.

Tampa police stopped Nader after they saw her sitting in her car through several light cycles, with only her parking lights on even though it was 1:30 a.m. After she failed field sobriety tests, she was taken for breath testing but refused. This led to an automatic driver’s license suspension, which Nader challenged at a hearing. At that hearing, she argued that the law requires only a breath test, but the officer’s statements required her to submit to a “blood, breath or urine” test. This argument was taken from a 2007 Fourth District Court of Appeal decision, FDHSMV v. Clark, even though Tampa is in the Second District. After losing, Nader appealed to the circuit court, which reluctantly found for her, noting that it was bound by Clark but did not agree with that ruling that the language was confusing. The state petitioned the Second District Court of Appeal for review, and it reversed, expressly disagreeing with the Fourth District. It also found that its own review was proper despite procedural rules limiting its review.

Ultimately, both issues were certified as questions to the Florida Supreme Court for review. The high court found that the “blood, breath or urine” language in Nader’s case did not violate the implied consent law such that Nader’s license may not be suspended for refusing it, but gave its blessing to district courts wishing to grant review to fix precedents they believe misinterpret the law. In its review, it noted that the “blood, breath or urine” language appears in several places in the law, leading to its appearance in a police affidavit used when drivers refuse to take a test — including in Nader’s case. Nader argued that this was inaccurate because she was offered only a breath test. The Second District, splitting with Clark, found that the use of the word “or” plainly suggests a choice, and the high court agreed; it further found no evidence that Nader felt she was obligated to take one of the other two. It went on to give district appeals courts the authority to review administrative decisions where there is a violation of clearly established law and a potential miscarriage of justice.

The dissent in this case focuses on this second issue, which gives appeals courts discretion in an area where the law limits their authority. But as a Miami DUI criminal defense attorney, I’m more interested in the first issue. This decision is bad for Florida drivers who refuse breath tests, who may not now rely on Clark if they try to challenge a driver’s license suspension. As a result, drivers may choose instead to submit to the breath test or find another defense at the administrative hearing, which every driver is entitled to request. You may have a better chance to win at this hearing than you realize, since suspensions can be invalidated by administrative mistakes or civil rights violations. That’s why, as a Fort Lauderdale intoxicated driving defense lawyer, I always recommend that my clients request this hearing if they can.

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February 22, 2012

Eleventh Circuit Finds Sentence Enhancement Valid Because Officers’ Firearm Use Foreseeable – U.S. v. McQueen

Here in South Florida, we have a lot of coastline, much of which faces foreign jurisdictions. As a Fort Lauderdale criminal defense lawyer, I sometimes hear about illegal activities on the sea, including smuggling and illegal immigration as well as less serious charges like boating under the influence. In United States v. McQueen, defendant Kelsey James McQueen was accused of smuggling illegal immigrants off the coast of Palm Beach County, after being caught by federal law enforcement on the water. He pleaded guilty to three counts of attempted alien smuggling and one count of failing to obey an order by law enforcement, but challenged a sentence enhancement for the officers’ use of a firearm. The Eleventh U.S. Circuit Court of Appeals upheld the sentence, finding McQueen’s actions induced officers to fire.

The undisputed facts show that McQueen’s vessel, which was known to smuggle narcotics and people, was spotted by Customs and Border Protection late at night in April of 2010. Patrol boats approached the boat offshore with sirens and lights activated and ordered it to stop, but McQueen fled east. After chasing for three minutes, officers fired two illuminated warning shots and four “pepper balls” (not defined in the opinion). After three more minutes, the officers fired two more warning shots. When this failed to stop McQueen’s flight, the officers boarded the vessel while it was still in motion. Their search turned up 14 alien nationals without permission to enter the United States. McQueen was charged with, and pleaded guilty to, three counts of attempted alien smuggling and one count of failing to obey an officer’s orders. At sentencing, McQueen objected in vain to the application of a sentence enhancement “if a firearm is discharged.” He challenged that enhancement on appeal.

The Eleventh Circuit noted that the sentence enhancement can include discharges “induced” by the defendant, and that it has upheld the use of this enhancement on a defendant who was shot by the person he was attempting to rob. The issue in this case, the court said, is whether McQueen induced the Customs officers to shoot. Using the robbery case, it found that he had. McQueen argued that the officers fired unnecessarily and recklessly and their actions were not a foreseeable response to his flight, but the Eleventh disagreed. By attempting to commit a crime in the first place, then fleeing officers who had turned on lights and sirens and ordered him to stop, the court said, McQueen could reasonably have foreseen that illuminated warning shots could be used to gain his compliance. Thus, it upheld his seven-year sentence.

As a South Florida federal crimes defense attorney, I have concerns about this ruling. McQueen and other defendants cannot predict what law enforcement will do. To hold them responsible for law enforcement’s actions seems contrary to the spirit of the law. The previous case referenced by the court involved a robbery victim who fired after the defendant pulled a gun on him. If the defendant knows the victim is carrying, it’s easy to predict that the weapon might come out in a self-defense situation. By contrast, the Customs officers were not in a life-threatening situation and likely had multiple possible responses to a suspect who flees. This makes it far less predictable that they would choose warning shots. As a Miami-Dade immigration criminal defense lawyer, I would be interested in seeing how future courts rule on this issue.

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February 15, 2012

Eleventh Circuit Finds Prosecutors May Not Argue Defendant Is Alien After Previous Acquittal – U.S. v. Valdiviez-Garza

As a Miami immigration crimes defense lawyer, I was interested to read an appellate decision with a relatively rare victory for the defendant. In United States v. Emiliano Valdiviez-Garza, Valdiviez-Garza appealed his indictment for illegal reentry by an alien who had already been removed. Valdiviez-Garza had successfully defended himself against the same or similar charges in an earlier case, by arguing that he may be a citizen through his father. Because he was not convicted in that trial, he argued that the government was estopped from attempting again to argue that he is an alien. And without that element, the Eleventh U.S. Circuit Court of Appeals noted, there is no crime at issue. The court ultimately decided Valdiviez-Garza was right, saying the valid and final judgment in that case precludes rearguing the issue now.

Valdiviez-Garza’s first illegal entry trial was in 2009. At that trial, he did not dispute the three elements of the crime other than alien status: That he had been removed, but later found in the U.S. without express federal permission. The focus of the trial was on his citizenship, and even the prosecution agreed that there was no cause to convict if Valdiviez-Garza was shown to be a citizen. During testimony, his attorney called an Immigration and Customs Enforcement agent to testify that Valdiviez-Garza’s father’s birth certificate listed Texas as his (the father’s) birthplace. Though Valdiviez-Garza was born abroad, his attorney said, he can still derive U.S. citizenship through that connection. Jury instructions echoed this, adding that in order for a child to be a citizen, the citizen parent must have been physically present in the United States for at least ten years, at least half of them when the parent was older than 14 years old. The jury voted to acquit.

In its opinion, the Eleventh Circuit concluded from the record that the 2009 jury had reasonable doubt as to whether Valdiviez-Garza was an alien. That reasonable doubt is enough to estop the government from making the same argument this time around, it found. Once a fact has been decided by a valid and final judgment, the same parties may not litigate it again in the future, the court said. Thus, the federal government is collaterally estopped from making the argument that Valdiviez-Garza is an alien ineligible for reentry. And because status as an alien is one of the four essential elements of the crime of illegal reentry, the Eleventh said, the government cannot prove its case without arguing that he is an alien. Thus, the district court should have dismissed his indictment, the Eleventh found, and reversed and remanded with instructions to dismiss.

As a Fort Lauderdale criminal defense lawyer, I’m pleased to see this victory for someone caught in the machine that is immigration law. Unlike in other areas of criminal law, there is no right to a public defender in immigration law; defendants must pay for their own lawyers or do without. Because many immigrants come to the United States for economic reasons, some are shut out from immigration appeals for economic reasons; others may not realize they have rights because they come from a country where court proceedings are not usual or not fair. Nonetheless, having an attorney to speak for you can make a big difference in an immigration case (or any other criminal case), in part because a South Florida immigration defense lawyer will simply understand the legal factors better.

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February 8, 2012

Eleventh Circuit Finds Defendant Lacked Standing to Challenge Asset Forfeiture Order – U.S. v. Davenport

As a Miami-Dade asset forfeiture criminal defense attorney, I was interested to see a federal appeals case in which the defendant did not lose an asset forfeiture appeal exactly — she was not permitted to challenge the order in the first place. In United States v. Davenport, Juanita Davenport appealed to the Eleventh U.S. Circuit Court of Appeals the dismissal of various claims related to $214,980 seized from a safe-deposit box. Davenport and co-defendants including Orlando Muckle were charged in Georgia with conspiring to possess drugs with intent to distribute. Through Muckle’s guilty plea, the federal government successfully requested forfeiture of the money in the safe-deposit box. Here, Davenport unsuccessfully appealed the denial of her motion to vacate the forfeiture order; the dismissal of her petition to the property; and the denial of her request to vacate for excusable neglect.

Davenport was also charged with making a false statement to law enforcement about the safe-deposit box, and ultimately pleaded guilty to that in exchange for the dismissal of other charges. The dismissed charges included the charge seeking forfeiture of the money. A year later, Muckle pleaded guilty to the drug charges, which did include an asset forfeiture count. Prior to accepting the plea, Muckle denied in writing and at a hearing that he had an ownership stake in the money, but the government nonetheless filed a preliminary order of forfeiture, giving other owners 30 to 60 days to petition the court for their share. Davenport’s attorney, apparently confused, did not petition until well after the deadline, and it was dismissed as untimely. She retained a new lawyer and asked to vacate the order for excusable neglect. The court ultimately declined to do so and dismissed the request as untimely, ordering the entire amount forfeited.

The Eleventh Circuit affirmed in part and dismissed in part, but not in a way that gave relief to Davenport. On her motion to vacate the preliminary order of forfeiture against Muckle, the court found that she had no standing to challenge it in the first place. Third parties may claim interest in property subject to criminal forfeiture, the court said, but their requests are considered only after the POF is entered, and they must be timely. Indeed, federal law does not allow third-party claimants to intervene in the criminal trial, the Eleventh said. In this issue of first impression, it sided with the Second, Eighth and Tenth Circuits, all of which found no right to intervene until the POF is entered and a hearing is called on third-party rights. Thus, it ruled that Davenport had no right to challenge the POF in this case. In addition, it ruled that the notice of the forfeiture hearing — where she would have standing — was adequate even though it was sent to her ex-attorney instead of her current one. Finally, it denied relief for missing the deadline, saying her ex-attorney’s negligence was not excusable neglect.

As a Fort Lauderdale drug crimes defense lawyer, I know courts can be tough about deadlines. Generally speaking, they are reluctant to excuse missing a deadline unless there was a genuine mistake on the court’s part. That Davenport apparently hired a bad attorney was not relevant to the claim (at least to the Eleventh Circuit). She may have a state-court cause of action against the attorney, but she will have to pursue it without her share of the money that was forfeited. Often, in my experiences as a south Florida narcotics criminal defense attorney, courts are not merciful in restitution cases — in part because the law is not written to allow much mercy. That’s why it’s so important to have an experienced, professional defense lawyer advocating for you at every step.

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February 1, 2012

Eleventh Circuit Vacates Doctors Conviction for Dispensing Controlled Substances – U.S. v. Ignasiak

As a south Florida drug crimes defense lawyer, I was interested to see a recent conviction of a doctor accused of over-prescribing the kinds of controlled substances widely abused in our state’s “pill mills.” In United States v. Ignasiak, Robert L. Ignasiak, Jr., appealed his convictions for health care fraud and violations of the Controlled Substances Act. Ignasiak was a medical doctor until the charges, which alleged that he prescribed pills with no legitimate medical purpose or in excessive amounts. The prescriptions at issue were for a total of 20 patients, two of whom later died. He was sentenced to more than 24 years in prison and appealed on several grounds, including that he was deprived of his constitutional right to confront witnesses when autopsy reports and medical notes were admitted without testimony from their authors. The Eleventh U.S. Circuit Court of Appeals reversed in that ground.

Ignasak operated his own busy clinic in the Florida Panhandle. He came under scrutiny because the federal government felt he was billing higher amounts than normal for a family-practice doctor. However, a review of the records raised the auditor’s concerns that Ignasak was prescribing significant amounts of narcotic painkillers for most of his adult patients, along with drugs less likely to lead to abuse. Ignasak retired later that year and sold his clinic. The new doctor also became alarmed at the number of narcotics prescriptions in the practice, especially after discovering that patients would be visibly angry when he declined to write new prescriptions. The government eventually seized all the patient files and prosecuted Ignasak on 54 total counts. At trial, over Ignasak’s objection, the court allowed introduction of autopsy records in patient deaths (including seven not charged but admitted into evidence) and handwritten medical notes despite no testimony from their authors. After his conviction, he appealed.

While the Eleventh Circuit upheld the trial court’s decision as to the sufficiency of the evidence, it agreed with Ignasak that the authors of the documents should have testified. It first found that the autopsy records were testimonial evidence subject to the constitution’s Confrontation Clause because they are forensic records, on which the Supreme Court has called for more scrutiny because of their scientific nature. Thus, the testimony of the area’s chief medical examiner is not a constitutionally adequate substitute for the testimony of the autopsy reports’ actual authors (where they were different people). Under the Confrontation Clause, Ignasak should have had the right to confront and cross-examine his accusers. Furthermore, the Eleventh found that the error was not harmless — that is, it wasn’t confident that the “powerful” evidence of the extra autopsy reports did not contribute to the verdicts. In light of the fact that the government’s case was not overwhelming otherwise, the court vacated the conviction and ordered a new trial.

As a Miami criminal defense attorney, I’m pleased to see that this case will get a new trial. The constitutional right to confront one’s accuser is so fundamental that denying it denies the defendant a fair trial in the first place. Consider the possibility that some records admitted as testimony could have been produced by someone who was not reliable — for example, because of simple negligence, substance abuse or conflicts of interests. When this is the case, a jury seeking to make the best possible decision needs to know about the problem so it can fairly judge whether the evidence shows the defendant’s guilt. The precedent established here by the Eleventh Circuit will benefit all the clients I take on as a Fort Lauderdale drug crimes defense lawyer, as well as any other criminal defendant in Florida.

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January 25, 2012

Supreme Court Orders New Trial in Murder Case Where Prosecutors Withheld Evidence – Smith v. Cain

As a criminal defense attorney in south Florida, I am part of a legal system that relies on adversaries to share certain specified information about cases. Information-sharing at the start of a criminal prosecution is called discovery, and it is not optional — withholding important information is punishable when the judge discovers it. However, prosecutors eager to get a conviction sometimes withhold evidence anyway — and judges don’t always find out, or react properly when they do. This can create a wrongful conviction requiring a retrial or a even a court order allowing the defendant to go free. That was the allegation in Smith v. Cain, a recent U.S. Supreme Court ruling alleging that New Orleans prosecutors failed to disclose contradictory statements made by the one eyewitness to the murder of five people. Because of that failure, the high court vacated the conviction of Juan Smith.

Smith was convicted for the murders and armed robbery on the testimony of Larry Boatner. Boatner said he was at a friend’s when armed gunmen burst in and demanded money and drugs, then began shooting. There were no other witnesses, and no physical evidence that Smith was involved. Boatner’s testimony at trial said Smith was the first gunman to come through the door. However, after Smith was convicted and began petitioning for post-conviction relief, he obtained police files with notes showing that Boatner had repeatedly told police he couldn’t identify the gunmen. In one note, Boatner said that he could only describe them as black males; in another, he said he wouldn’t know them if he saw them again because he couldn’t see their faces. Boatner alleged that this violated 1963’s Brady v. Maryland, which requires police to share relevant evidence. After his rejection by lower courts, the U.S. Supreme Court granted certiorari.

In a surprisingly brief opinion, Chief Justice John Roberts reversed all of the lower courts, vacating Smith’s conviction. Brady says prosecutors violate the defendant’s constitutional right to due process by withholding material evidence favorable to the defense; the two sides disagreed on whether Boatner’s statements to police were material. The majority found that it was. Established law says evidence is material when it may reasonably have changed the case’s outcome, at least enough to undermine confidence in the trial. The court wrote that this standard was met, both because the prosecutors in Smith’s case didn’t have enough evidence outside of Boatner’s statements to convict Smith, and because Boatner’s testimony directly contradicted his statements to police. A considerably longer dissent by Justice Thomas argued that the majority had failed to properly consider prosecutors’ arguments.

This decision reiterates support for existing law, but it’s still good news for criminal defendants and Miami-Dade criminal defense lawyers like me, because it strengthens the well-established rule that prosecutors may not withhold favorable evidence. To do otherwise would undermine the criminal justice process by allowing prosecutors to give themselves an unfair advantage. After all, juries cannot decide cases based on evidence they never see, nor can defendants construct their best possible cases without knowing material facts involved in the prosecution. In the nearly 50 years since the Brady decision, courts have established that this includes evidence that could impeach a witness as well as exculpatory evidence. As a Fort Lauderdale criminal defense lawyer, I appreciate having the opportunity to make the best possible case for my clients without misconduct by prosecutors.

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January 18, 2012

Orlando Police Not Entitled to Qualified Immunity From Excessive Force Lawsuit Involving Dog – Edwards v. Shanley

As a criminal defense lawyer in south Florida, I often hear from my clients about arrests in which the police used excessive force. Force is part of a police officer’s job, but it’s also subject to limitations that respect the arrestee’s civil rights. Officers who clearly overstep those limitations can lose their immunity from lawsuits, and that’s what happened to two Orlando police officers accused of excessive use of force in Edwards v. Shanley et al.. Colin Edwards was driving his wife’s car with a suspended license when he was pulled over. Panicking, he ran and was eventually tracked by a police dog, which he claims attacked him for five to seven minutes despite the fact that he had already surrendered. The Eleventh U.S. Circuit Court of Appeals ruled Jan. 12 that the officers were not entitled to immunity from his subsequent lawsuit.

Officer Justin Lovett of the Orlando police attempted to pull Edwards over for failing to stop properly at a stop sign in 2008. Edwards parked, got out and ran into the woods, but didn’t get very far before he decided to surrender by lying down on his stomach with his hands exposed. Meanwhile, Lovett had summoned Officer Bryan Shanley and his dog, Rosco, who led the humans to Edwards. The officers shouted to Edwards to show his hands, and Edwards shouted “You got me. I only ran because of my license.” As he said his, however, Rosco began biting his leg. Edwards alleges in his complaint that this continued for five to seven minutes as he lay there and occasionally yelled “I’m not resisting.” The officers made no move to arrest or instruct him further, but eventually did handcuff him before commanding the dog to release his bite.

Edwards was transported to the hospital, where a doctor said he’d suffered significant muscle and tendon damage from substantial loss of tissue. One of the officers joked that it looked like filet mignon, and that this is why officers do not feed their dogs. Edwards eventually pleaded no contest to felony fleeing a police officer; charges of resisting an officer, striking a police dog and driving with a suspended license were dismissed. He sued both officers, alleging Shanley used excessive force and Lovett failed to stop the attack. The federal district court for central Florida dismissed the case, granting the officers qualified immunity. This appeal followed.

On appeal, Edwards argued that the use of a police dog was itself excessive, but that the officers also violated his Constitutional rights by allowing the dog to continue biting for five to seven minutes “while Edwards pleaded to surrender.” The Eleventh Circuit was more impressed by the second argument. Noting that the record on appeal was scant and a jury might have a more complete picture of the facts, it found that the problem lay in the officers’ choice to let the dog attack continue past the first bite. While officers may have been justified in fearing Edwards before they caught up to him and could see what kind of threat he posed, the court said, they lost the justification after finding him facedown with his hands visible and asking to surrender. Allowing the dog to continue was unnecessary, “gratuitous and sadistic,” the court said, thus clearly violating the Constitution. It reversed the grant of qualified immunity to both officers.

As a Fort Lauderdale driving while license suspended lawyer, I’m pleased that the Eleventh Circuit came to this conclusion. I noticed that Edwards originally faced a charge of resisting an officer without violence and one of striking a police dog. Resisting an officer is a classic example of a charge brought by Florida police when they don’t like the suspect, often on the thinnest of evidence. In this case, the police dog charge likely also serves this function, since the record shows Edwards had no opportunity to strike the dog. As a Miami resisting an officer attorney, I vigorously defend these cases, often by pointing out to prosecutors that the facts are on my client’s side.

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January 11, 2012

Courts Must Review Public Defender Motions to Withdraw for Conflict, Florida Supreme Court Rules

As a Miami-Dade robbery criminal defense lawyer, I was interested to see a recent ruling from here in south Florida about when attorneys may back out of a case because of perceived or actual conflicts of interests. In Johnson v. State, an appellate public defender moved to withdraw from the appeals case of Christopher Johnson because the same public defender was already representing Johnson’s co-defendant, James Mayfield.. The defender’s withdrawal would have required Florida’s Office of Criminal Conduct and Civil Regional Counsel (RCC) to step in, but RCC objected. In this case, the Florida Supreme Court found that RCC has no standing to object to a public defender’s good-faith motion for a conflict withdrawal, but that courts at all levels must review those motions, not just rubber-stamp them.

Johnson and Mayfield had both been convicted in Broward County of robbery with a firearm and carjacking, then appealed the sentence. When the appellate public defender moved to withdraw from Johnson’s defense based on already representing Mayfield, RCC objected. The public defender said RCC had no standing to object, and that there was no need for fact-finding in any case because conflicts are inherent in representing co-defendants. Before the Fourth District Court of Appeal, RCC argued that the defender must show actual conflict, since conflict at the trial level may not translate to the appellate level. The Fourth District ultimately sided with the defender, appointing RCC to represent Johnson. It ruled that the law does not require a fact-finding inquiry into a certified conflict at the appeals level before automatically assigning representation to RCC. It also found that RCC has no standing to challenge a motion to withdraw, since no statute currently authorizes this.

The Florida Supreme Court found that the Fourth District was wrong about conflict cases automatically being assigned to RCC. Though the statute says “regional counsel shall handle the appeal” if a public defender certifies a conflict, it said history and legislative intent have handled it differently. There is no basis in legislative history to assume this, it said, and statutory language governing conflicts outlines a process involving a court inquiry. In fact, it found that this language is not specific to the trial court, and ruled that the appeals court must also review motions to withdraw, as it does other motions. However, the high court sided with the public defender on standing, ruling that RCC has no legal permission to object to such motions. RCC’s duty to represent arises only when a court grants a conflict motion to a public defender, the Supreme Court noted. It is also not a party to the case, which would give it a stronger stake in the outcome. Thus, it agreed that RCC had no standing and no right to be heard in a conflict hearing.

One likely result of this case is that Johnson’s appeal may have been hung up in court for months or longer while the Supreme Court made its decision. While conflicts of interests are an important issue in criminal defense, that may be cold comfort to the defendant who must wait to hear about his fate — and it can be avoided by defendants who choose to hire their own private south Florida criminal defense attorneys. Public defenders do an important job, but they are often given larger case loads than comparable private-sector attorneys. This can leave them poorly equipped to give unusual cases enough attention. As a Fort Lauderdale criminal defense lawyer, I prefer to reduce the volume of my cases, even if that means making less money, so that I have time to give each client the best representation I can.

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January 5, 2012

Eleventh Circuit Vacates Conviction Because Judge Improperly Participated in Plea Discussions – U.S. v. Davila

An important part of my job as a Miami criminal defense lawyer is helping clients understand the advantages and disadvantages of pleading guilty or going to trial. This is known as a plea deal or plea bargain, and it may be a tough call in some circumstances — but it should always be made by a well informed client who was free of improper interference. That’s why I was interested to see a recent Eleventh Circuit decision vacating a conviction that was wrongly influenced by the judge’s comments. In United States v. Davila, Anthony Davila of Georgia was being prosecuted for conspiracy to defraud the United States, using a scheme involving false tax refunds. The Eleventh found that the magistrate judge should not have essentially advised Davila on his defense strategy.

During a hearing before a magistrate judge, Davila requested the discharge of his court-appointed attorney, complaining that the attorney had not discussed options other than pleading guilty. The magistrate judge suggested that there was no other viable defense, and advised Davila that the only thing under his control was whether he planned to accept responsibility, thus allowing a lowered offense level. The opinion quoted the judge as telling Davila “You’ve got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three- level reduction for acceptance, and believe me, Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance.” Davila did eventually plead guilty and receive a sentence of 115 months, more than nine years.

His appeal to the Eleventh U.S. Circuit Court of Appeals argued that these comments were essentially improper participation in the plea discussions. By commenting on the weight of the evidence, Davila argued, the magistrate judge was suggesting that the sentence for a plea would be more favorable than a sentence coming out of a conviction. As a preliminary matter, the court noted that Davila failed to object to this in trial court, so it must review the court’s decision for plain error. Fortunately for Davila, the appeals court found plain error. The Federal Rules of Criminal Procedure expressly say that the court must not participate in plea agreement discussions, with no exceptions. Under Eleventh Circuit precedent, the defendant need not show any actual prejudice as a result; it is enough to show that the behavior was improper. Thus, it vacated Davila’s sentence and sent it back for retrial with a different judge.

Though I certainly handle fraud as a south Florida tax evasion attorney, this case has implications for a wide range of criminal cases. The Eleventh’s ruling reiterates that judges may not step into the plea deal discussion in any way, no matter how well intentioned. Indeed, this magistrate judge may have intended nothing more than to help Davila — but he was violating the law as well as unduly influencing the process. This is not just a technical violation. As the opinion in this case noted, allowing judges to participate in a plea discussion makes their preferences known (or seems to), which tends to change the parameters of the debate, bring the judge’s impartiality into question and possibly coerce the result. As a Fort Lauderdale fraud defense lawyer, I feel that preventing this protects both my clients and the integrity of the case itself.

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December 21, 2011

Florida High Court Rules Delay Allows Defendant to Challenge Jimmy Ryce Trial – Boatman v. State

As a south Florida sex crimes defense lawyer, I was pleased to see a rare appellate victory for a defendant tried under the Jimmy Ryce Act. The Ryce Act allows Florida prosecutors to evaluate certain offenders and determine whether they should be committed involuntarily as “sexually violent predators.” In Boatman v. State, Rayvon Boatman challenged his Ryce Act trial and conviction on the grounds that prosecutors waited longer than the thirty days required by the Act before holding the trial. The First District Court of Appeal ruled that Boatman had waived his right to appeal by not petitioning for habeas corpus after his Ryce Act trial, although he did object at trial to the length of his detention. However, the district court did certify the questions to the Florida Supreme Court, which permitted Boatman to continue his challenge.

Boatman pleaded guilty in 1994 to sexual battery with “slight force.” While he served his prison sentence, he was referred for evaluation as a sexually violent predator. Psychiatrists recommended this in July of 2008 and prosecutors filed a petition for the declaration in October of 2008. This was well over the 30-day deadline set by the Ryce Act, and it was later continued for several more months. Boatman noted this in a pretrial hearing and renewed the complaint as trial began, to no avail. He was found to be a sexually violent predator and committed. Boatman appealed to the First District, arguing that there was no good cause for a continuance, and he should have been immediately released because the prosecution went over the 30-day deadline. The First District agreed that the continuance was improper, but ruled that Boatman should have filed for a writ of habeas corpus as soon as the deadline was up, rather than raising the issue again on appeal.

The First District certified a question to the Florida Supreme Court that the high court split into two questions. One, if a defendant like Boatman is not brought to trial in 30 days, and has objected in trial court, is the claim waived if he does not file a habeas corpus complaint? Two, if the defendant does wait for an appeal to raise more objections and wins, is it appropriate remedy to release him or her and dismiss the Ryce Act proceedings? In both cases, the court said no. Florida defendants whose prosecutors miss the 30-day deadline may file writs before a Ryce Act trial, or they can appeal after trial, the court said. But if defendants do wait, the court said, they must be able to show that the fairness of the trial was affected in order to win dismissal and release. This is not exactly a speedy trial violation case or a pretrial detention case, the court said. Thus, while a habeas corpus petition is the preferred way of resolving the issue, failing to file one does not waive the issue for later. However, waiting does foreclose the option of having the Ryce Act proceedings dismissed, the court said, because allowing this later would effectively give defendants a second trial.

As a Fort Lauderdale criminal defense attorney, I’m pleased that the high court found for defendants on the first question. When an issue is waived on appeal, defendants can never argue it, no matter how valid or strong their arguments may be. However, as the court noted, this does Boatman no good because the court also determined that he had no case for dismissal. After he had already been tried and convicted, the court said, it would make no sense to let him go free. Thus, he has no remedy for the four-plus months he spent in custody when he should have been free. This underscores the importance of having an experienced Miami-Dade sex crimes defense lawyer by your side whenever you’re facing these very serious charges.

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December 7, 2011

Florida Supreme Court Rules Ineffective Assistance of Counsel Ruling Cannot Apply Retroactively – Walton v. State

As a south Florida criminal defense attorney, I know how important the assistance of an experienced attorney can be. This is especially true for defendants facing serious charges like murder and manslaughter, who are eligible for the death penalty or life in prison. That’s why I was interested to see a recent Florida Supreme Court decision denying a capital murder defendant’s petition to apply a recent U.S. Supreme Court ruling retroactively to his own case. In Walton v. State, Jason Dirk Walton argued that he received ineffective assistance of counsel under the 2009 decision, Porter v. McCollum. He asked the court to apply Porter to his three convictions for capital murder in 1985 and again on retrial in 1989, relying on 1980’s Witt v. State to make it retroactive. Neither the trial court nor the Florida Supreme Court agreed.

In Witt, the Florida high court held that decisions should be retroactive only when they involve constitutional changes. This is to be evaluated on a case-by-case basis in each court. In Porter, the defendant argued for postconviction relief because of ineffective assistance of an attorney who did not present mitigating evidence about Porter’s childhood, military service and impairments. The United States Supreme Court found that this was prejudicial.

In the instant case, Walton argued that before Porter, including in his own case, the Florida Supreme Court had misread the law on ineffective assistance of counsel. Before the trial court, he said this was a fundamental change in the law under Witt, allowing it to apply retroactively. The trial court found this untimely, successive and procedurally barred and denied it without a hearing. It also concluded that Porter was not a constitutional change. Walton appealed, but had no better luck before the Florida Supreme Court. That court agreed that Porter did not create a fundamental constitutional change. As a result, it said, Witt cannot be used to make it apply retroactively. Furthermore, the court said, the instant case attempts to relitigate issues that had been settled in Walton’s previous postconviction motion. Thus, it upheld the trial court.

This decision underscores the importance of having a Fort Lauderdale murder criminal defense lawyer by your side if you are facing charges as serious as Walton’s. When your life is literally on the line, you need an attorney who will protect all of your interests at trial and explore every avenue of defense that could reasonably help. This includes presenting the kind of background information seen as mitigating in Porter — evidence of a troubled childhood, addiction problems, post-traumatic stress disorder and other explanations for the defendant’s actions. As this case shows, it’s very difficult to convince a court to reconsider a conviction once that conviction has been entered. This is why it’s so important for Miami-Dade manslaughter defense attorneys like me to present a vigorous and thorough defense the first time.

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November 30, 2011

Florida Supreme Court Declines to Reach Jurisdiction Claim, Ruling Challenge Is Time Barred – Carbajal v. State

One issue that comes up often in my work as a Fort Lauderdale criminal defense attorney is the importance of meeting court deadlines. In legal matters, deadlines are absolutely vital because missing one can end an entire case, no matter how valid the underlying claim might be. That was what happened in Carbajal v. State, a Florida Supreme Court ruling rejecting an appeal by David Carbajal, who is serving a lengthy sentence for drug offenses. All of his offenses took place in the same county and thus the same Florida judicial circuit, but he was prosecuted by the Office of the Statewide Prosecutor. More than five years after his conviction, he challenged that office’s jurisdiction, saying this robbed the circuit court of its authority to convict him. The Second District Court of Appeal certified this issue to the state Supreme Court, which decline to reach it on the grounds that Carbajal waited too long.

The Office of the Statewide Prosecutor was created in 1986 by popular vote to prosecute organized crimes taking place in multiple state judicial circuits. It filed a ten-count indictment of Carbajal in December of 2001. He pleaded nolo contendere to unspecified drug crimes and is serving 155 months in prison. He filed no appeal of his sentence or conviction, but in February of 2007, moved for postconviction relief on the grounds that the OSP had no jurisdiction to prosecute him. He contended that the motion was not time-barred because challenging the jurisdiction of the circuit court can be done at any time. The circuit court agreed with this but denied the motion on its merits. The Second District Court of Appeal affirmed, but on the basis that the motion was not timely. This conflicts with at least four decisions in three other Courts of Appeal. Its determination that OSP’s lack of jurisdiction would not in any case divest the circuit court of jurisdiction also conflicted with other courts, so it certified the issues to the Florida Supreme Court.

On appeal, the Florida Supreme Court upheld both of the Second District’s decisions. It agreed with Carbajal that under Florida law, the OSP was not authorized to prosecute his crimes, which all arose in Lee County. However, it said, any such defect does not take subject matter jurisdiction to prosecute Carbajal away from the circuit court. Regardless of the prosecuting agency, the applicable circuit court is the correct place to bring felony drug charges. Under Florida law, defects in charging information are not enough to void a conviction, the court noted. Nor did the defects mislead Carbajal in a way that reduced his ability to defend himself. Such a mistake may be voidable in a timely challenge, the court added, but Carbajal’s challenge came years after the conviction. He effectively conceded that the motion was untimely, the court said, and thus he cannot challenge it now. Thus, the high court upheld the Second District.

As a Miami-Dade drug crimes defense lawyer, I recommend that all defendants consult an experienced attorney when they first realize they will face charges. It’s not clear whether Carbajal had representation during his original charges and nolo contendere plea. But as a rule, an attorney should be able to spot potential issues such as a lack of jurisdiction by the prosecuting agency. Retaining an experienced attorney would also help with meeting deadlines for an appeal or other court deadlines, an essential part of any criminal case. Particularly in cases involving serious drug charges — which carry high sentences for political reasons — it’s vital to talk to a south Florida narcotics criminal defense attorney as early as possible so you can start building your defense.

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November 23, 2011

Florida Supreme Court Imposes Sanctions on Prisoner for Filing Too Many Legal Cases – Hastings v. State

As a Miami criminal defense lawyer, I strongly urge people facing serious legal cases to hire some kind of experienced attorney, even if it’s not me. People who represent themselves in any situation are at a serious disadvantage, but people who represent themselves in criminal cases run the risk of losing their freedom or even their lives because of mistakes professionals are unlikely to make. Sometimes, people who represent themselves have good cases, but they don’t know how to present them properly, and deadlines pass before they can fix the situation. To make matters worse, while the courts typically extend some sympathy to self-represented people (who are called pro se), judges used to dealing with professional attorneys can lose their patience. So it wasn’t surprising to see the Florida Supreme Court order sanctions against one pro se plaintiff in Hastings v. State of Florida.

Jeffrey Robert Hastings is an inmate serving 180 years in state prison for the manslaughters of six people, as a habitual offender, and 15 more years for escaping from prison. His last sentencing was in 1980. After his convictions became final, he began filing numerous legal cases, acting as his own attorney. In 1998, a trial court prohibited him from filing any more pro se cases about his manslaughter convictions. Two opinions followed from the Fourth and Fifth District Courts of Appeal, upholding that decision and also prohibiting him from filing pro se cases over his escape conviction and sentence. In 2010, Hastings filed with the Florida Supreme Court for a writ of mandamus — ordering a lower court to do something — to compel the public defender’s office to help him fight his convictions. This was dismissed in May of 2011, but the court further asked Hastings to show why it should not reject any similar future filings.

In his response, Hastings argued that he should not be penalized for his lack of legal sophistication or the lower courts’ unwillingness to reverse sentences he says are illegal. He also noted that some of the petitions he filed had to do with matters other than his convictions and sentences, such as parole. The Florida Supreme Court was not impressed. In its opinion, the court listed 26 other petitions Hastings had filed with the Florida Supreme Court since 2000. While some did pertain to parole and gain time, the court said, many more attacked his convictions and sentences. The Supreme Court found all of them meritless or inappropriate for the court. In this case, the court said, Hastings did not justify what it said was misuse of the courts, or show remorse. It said he was likely to continue filing petitions if not stopped. Such litigants waste limited judicial resources and block access to justice by other citizens, the high court noted. Thus, it directed the clerk of the court to reject all future filings by Hastings having to do with his convictions and sentences, unless signed by a member of the Florida State Bar.

Although this order theoretically creates more work for south Florida criminal defense attorneys like me, I cannot like it. Limiting someone’s access to justice so severely is a serious penalty that should only be used when the litigant is genuinely out of control. Though the Supreme Court did not have space to explain why each petition was without merit, this opinion never even attempted to reach the issue of whether Hastings did indeed get an illegal sentence. Thanks to my experience as a Fort Lauderdale manslaughter criminal defense lawyer, I happen to know that manslaughter normally carries up to 15 years in prison, which means Hastings was sentenced to double the normal maximum time in that case. This is not to say that his claims did have merit — but if they did, an experienced attorney could have made the difference.

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November 16, 2011

Florida Supreme Court Sends Back Five Murder Cases for Potential Jury Instruction Flaws

As a south Florida murder criminal defense attorney, I was extremely interested to see a series of six decisions out of the state high court that all centered on the same issue. The Florida Supreme Court recently sent back the six cases, all of which asked whether juries in murder cases were given the proper jury instructions. In Solano v. State, Bonilla v. State, Zeigler v. State, Mungin v. State, Burgos v. State and Valdes-Pino v. State, the high court said the defendants may have been the victims of reversible error. All six were convicted of second-degree murder using then-standard jury instructions that changed after the court’s 2010 ruling in State v. Montgomery. That ruling said Montgomery was entitled to more accurate jury instructions on the lesser included offense of manslaughter by act. All six cases were sent back to the lower court for reconsideration in light of Montgomery.

In Montgomery, Steven Montgomery was convicted of second-degree murder with a weapon in the death of Tarnesha Ellis. He appealed to the First District Court of Appeal. Among other arguments, he argued to the court that manslaughter by act does not require an intent to kill, and thus the jury instructions in his case were incorrect. The appeals court agreed, finding that the jury was incorrectly told it must find that Montgomery intended to kill Ellis. The State of Florida petitioned the state high court for review and the appeals court certified a question of “great public importance”: “Is the state required to prove that the defendant intended to kill the victim in order to establish the crime of manslaughter by act?”

On appeal, the Florida Supreme Court said no. In the first part of its analysis, it found that the crime of manslaughter by act does not require intent to kill. First-degree murder requires this intent, which the court said distinguishes it from non-premeditated second-degree murder. Manslaughter, a lesser included offense of both kinds of murder, is a killing “by the act, procurement or culpable negligence of another... without lawful justification” in cases that aren’t justifiable homicide or murder. Thus, the court said, there is no requirement for intent to kill the victim. Next, the court found that the jury instruction in Montgomery’s case, which was standard at the time, erroneously required the jury to find that “(Defendant) intentionally caused the death of (victim).” Another instruction requiring no premeditated intent was not sufficient to counteract this language, the court found. Finally, it found that this instruction caused reversible fundamental error in Montgomery’s trial, requiring a new trial.

In each of the six cases recently decided, the case was sent back to the Second or Third District Court of Appeal for reconsideration of a case that court had previously decided in conflict with Montgomery. As a Miami-Dade manslaughter criminal defense lawyer, I’m pleased by these decisions. The reversals mean each defendant is likely to get a new trial, at which each could be re-convicted under the new jury instructions, or potentially convicted of manslaughter instead. Though it’s not a “get out of jail free card,” this should help ensure that each defendant gets a better shot at justice. As the high court said, jury instruction problems constitute fundamental error because they can make the difference between conviction and acquittal. As a Fort Lauderdale murder criminal defense lawyer, I believe that when the stakes are as high as life in prison or the death penalty, the standards for conviction must be scrupulously met.

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November 1, 2011

Advice on How to Record Abuse of Police Authority May Be Useful for Miamians and Protesters

Here in south Florida, we recently made the national news when a citizen filmed alleged police brutality, only to narrowly avoid having the video destroyed when the police allegedly attempted to destroy his cell phone. So, as a Miami-Dade criminal defense attorney, I was pleased to see a recent piece giving average people advice on how to record police actions on their phones. The article, from Wired.com’s How-To Wiki, discusses the legal rights of people filming police actions as well as the practical aspects of taking the video and then spreading it across the Internet. Perhaps most importantly, the article ends with the advice to get a good attorney if you’ve been arrested, good advice no matter whether you were a bystander caught up on a police action or a protester intentionally standing in harm’s way.

The piece starts out by noting that each state has a different law on whether citizens may record the police with a small camera. Here in Florida, recording anything that takes place in public should be legal under a provision of the law allowing recording without the other person’s consent, as long as there is no “reasonable expectation” of privacy. Media reports in the wake of the arrest of Narces Benoit have given expert opinions saying that this extends to taping police actions — but the Florida courts have not made a definitive ruling. The article goes on to advise would-be camerapeople that they are free to refuse consent to a police search of their person, car or home, and have the right to remain silent. You may also leave if you are not under arrest. Those who are able to keep the video out of police hands are advised to put it online as soon as possible and consider filing a complaint about any mistreatment.

As a Fort Lauderdale criminal defense lawyer, I’d like to talk a little further about how these rights may come into play in real life. In the Narces Benoit case, Benoit claimed he was a bystander who happened to film police shooting at Raymond Herisse, who died last May after police fired on him for driving his car into their ranks. Once police spotted him filing, Benoit said, they arrested him and his girlfriend at gunpoint and attempted to smash the phone while yelling “You want to be [expletive] paparazzi?” The police department denies that the phone was damaged. In other states, bystanders who happened to film police actions have been arrested for refusing to hand over the video and their videos confiscated; the charges are usually dropped or never brought. This means people who film police cannot expect to be left alone, even though they are usually not breaking the law. It also means that they should attempt to hide or upload the video as quickly as possible.

If you’ve been arrested in south Florida for exercising your legal right to record public police actions, don’t wait before you call Seltzer Law, P.A. for help. Based in downtown Miami, we represent clients facing all kinds of charges — from serious, violent crimes to charges that may seem more like a pretext for getting rid of someone police don’t happen to like. In cases like that of Benoit, defendants often face charges like interfering with police activity, resisting an officer or wiretapping. Our experienced south Florida defense attorneys can often have charges like this dropped early in the process by letting prosecutors know we understand our clients’ legal rights and are fully prepared to defend them. If that’s not possible, we will mount a strong defense before a jury, which is not likely to be impressed by alleged abuse of police power.

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October 31, 2011

FBI Report Shows Rise in Insurance Fraud and Other Nonviolent Crime Among Street Gangs

As a Miami insurance fraud criminal defense lawyer, I was interested to read an article suggesting insurance fraud and other forms of fraud are on the rise. According to AOL’s DailyFinance site, the kind of street gang that has historically focused on crimes like drug trafficking or underground gambling is starting to get involved in “white-collar” crimes. The numbers come from an FBI report, which cites the Crips, the Mexican Mafia, the Armenian Power gang, the Latin Kings, the Bloods and the Vice Lords. In addition to insurance fraud, they’re accused of involvement in mortgage fraud, identity theft, counterfeiting checks and other forms of financial fraud. In addition to being a new source of revenue, the new crimes also help the gangs launder money.

An FBI spokesperson said part of the reason for the change in criminal focus is opportunity. Just like other segments of society, street gangs recognized that the mortgage bubble presented an opportunity to make money. In addition, the spokesperson said, the Internet offers opportunities to commit crimes under greater cover of anonymity than in-person crime allows. Thus, a criminal organization can organize credit card fraud or steal many identities at once, and often make purchases with the purloined information, without ever leaving the room. And not surprisingly, the spokesperson said there’s a perception among criminal gangs that “white-collar” crime is punished less harshly than the kind of street crime they’re used to. The article cautioned that this isn’t necessarily true, however, since sentencing takes into account the magnitude of the losses as well as the use of violence and so on.

This is true, but as a Fort Lauderdale insurance fraud defense attorney, I still suspect that the sentences involved will start out at a lower range. Observers of the court system know that sentencing is not always fair or well-thought-out; consider the sentences for crack crimes, which until recently were 100 times more harsh than the sentences for an equivalent cocaine crime. Because a crime like insurance fraud does not require violence, it’s likely that the base sentence will be lower. Of course, this doesn’t prevent the sentencing judge from heaping on enhancements or factors that raise the sentence, and in fact, people with a history of criminal activity are generally likely to get higher sentences. But in addition, there’s a real risk that judges will hand down harsher sentences because they simply don’t like the defendant’s gang membership status, regardless of past criminal history, or even his or her ethnic background.

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October 28, 2011

Eleventh Circuit Upholds Civil Insurance Fraud Judgment Against Florida Clinic – State Farm v. Physicians Injury Care Clinic

As a south Florida insurance fraud defense attorney, I was interested to read an Eleventh U.S. Circuit Court of Appeals decision on civil liability for insurance fraud. In State Farm Mutual Automobile Insurance Co. v. Physicians Injury Care Clinic, the federal appeals court upheld a Central Florida ruling making PICC liable for alleged fraudulent claims stemming from false auto accidents. State Farm claimed the defendants pushed its insureds through a course of unnecessary medical treatment that was specifically designed to exhaust their PIP benefits. After an initial mistrial, a jury in the Middle District of Florida agreed and awarded financial damages to State Farm. The Eleventh eventually upheld that award.

The opinion does not describe the alleged fraudulent scheme in detail, but it does note that each patient had a PIP limit of $10,000. State Farm sued for the cost of the improper benefits, as well as a declaratory judgment that it was not required to pay any new costs that were pending. Eight patients who had been treated for car crash injuries by PICC intervened as defendants in the first trial, making counterclaims against State Farm for breach of contract and other torts. At trial, the defendants argued that they should not face civil liability for insurance fraud because Florida law authorizes insurers to sue people found guilty of PIP insurance fraud in criminal courts. This argument was unsuccessful. After the mistrial and the second trial that the Eleventh did not detail, a jury found for State Farm on all counts.

On appeal, the defendants raised the preemption issue, but to no avail. The Eleventh Circuit found that the statute was not an exclusive remedy, but could coexist with the common law. It also found that the insurer’s common-law fraud claim was not barred by Florida’s economic loss rule, which bars tort-based lawsuits over matters arising from contracts. However, the court said that because the defendants had assigned their right to payment of PIP benefits to PICC — a common way of handling auto insurance benefits — the law did not apply, since PICC was not privy to the contract. State Farm presented enough evidence to prove its fraud allegations, the court said; it provided testimony from a doctor and two former patients alleging that PICC gave pre-determined diagnoses and medically unnecessary treatments. For similar reasons, the Eleventh found that the trial court was correct not to grant summary judgment on State Farm’s declaratory judgment motion. Turning next to the counterclaims, the Eleventh also rebuffed arguments that State Farm was not entitled to judgment as a matter of law on unjust enrichment, and that it should not have been permitted to make a claim under Florida’s deceptive trade practices statute. However, the Eleventh did reverse the trial court on the issue of withdrawal of PIP payments not yet paid, finding that State Farm was legally required to get a doctor’s opinion first.

As a Miami insurance fraud defense lawyer, I’m always interested to see an insurer turn to the civil courts rather than pursuing a criminal case. It’s not clear why State Farm filed a lawsuit in this case rather than relying on prosecutors, but it’s possible that prosecutors declined to bring any case. If that’s the case, the insurance company may have benefited from a small but important difference between the two systems: The standard of proof in civil cases is lower. In criminal cases, prosecutors must be able to prove insurance fraud beyond a reasonable doubt — and it could be that the proof was just not strong enough. If that’s true in any of my work as a Fort Lauderdale insurance fraud defense attorney, I will defend the case aggressively, seeking to show jurors why the evidence of my client’s wrongdoing doesn’t meet legal standards for conviction.

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October 26, 2011

Florida Supreme Court Finds Parents May Be Convicted for Kidnapping Own Children – Davila v. State

As a south Florida criminal defense lawyer, I was interested to read a Florida Supreme Court case that presented an interesting legal question: May parents be convicted of kidnapping their own children? Davila v. State was not a custody kidnapping case, but rather a case of child abuse with an imprisonment component. Davila was accused of false imprisonment, kidnapping, aggravated child abuse and more in his treatment of his minor son R.D., then eleven years old. Among other things, he was accused of locking R.D. in storage rooms and bathrooms for several weeks at a time for offenses ranging from lying to not washing dishes well. The Florida High Court ruled that parents may be convicted of kidnapping their own children under some circumstances.

R.D. came to live in Florida from Nicaragua in February of 2000; it was unclear whether the rest of the family came at the same time. At Davila’s trial, R.D. testified that not long after his arrival, his parents hit him several times for lying and misbehavior, and locked him in a storage room for three weeks. R.D. testified that in May, he was locked in a bathroom for three weeks, and again in July for one week. On one of those occasions, he said, it was at the request of his mother, who was not satisfied with his dishwashing. Davila allegedly bound R.D.’s hands and feet with rope, tied handkerchiefs over his eyes and mouth and put a bucket over his head, then forced to lie in the bathtub. When R.D. escaped from the rope or left the bathtub, he said, his father hit and kicked him with enough force to break tile. The abuse ended in July when R.D. escaped to a neighbor through a bathroom window. Davila disputed the tying, the duration of the lockups and the reasons for the punishment, but he was nonetheless convicted at trial and sentenced to life in prison. The Third District Court of Appeal ruled that a parent may kidnap his own child, but noted that this conflicted with a Second District ruling, Muniz v. State.

The Florida Supreme Court ultimately preferred the outcome in Davila, ruling that a parent may indeed be convicted of kidnapping, under the right circumstances. Under the plain language of the statute, it said, nothing prevents a parent or legal guardian from being charged; the statute requires only that the accused confine or abduct another person with intent to (in relevant part) terrorize him or her. Another subsection specifies that kidnap of a child under age 13 is against his or her will if it’s against the will of the parents or guardians. The court found that this section provides only a way for prosecutors to prove the will of young children; it is not the exclusive method. It found that if the Legislature intended to exempt parents from the kidnapping statute, it would have made this express. Judge Pariente concurred, mainly to address a dissent by Judge Canady. The dissent argued that Davila’s argument could not be found unreasonable, since the absence of a parent or guardian’s consent could be read as necessary rather than optional. Pariente said this could lead to an absurd conclusion, protecting teens 13 and older more thoroughly than younger children.

I do not approve of the parental behavior described in this opinion. But as a Miami-Dade criminal defense attorney, I would prefer a clear statement from the Legislature about whether the court was correct in its ruling. Kidnapping statutes are most often written with abduction by strangers in mind. Thus, the authors of the statute were likely not thinking about this issue when they wrote it, and the courts may have genuine difficulty divining legislative intent. It’s worth keeping in mind that while kidnapping is the most serious of Davila’s convictions, he would not walk free without it; that life sentence runs concurrently with a 30-year sentence for aggravated child abuse. As a Fort Lauderdale criminal defense lawyer, I am always cautious about heaping on new penalties unless they truly fit the crime.

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October 19, 2011

Miami Man Spent 10 Months in Jail After Childhood Friend Set Him Up for Mortgage Fraud

As a Florida mortgage fraud defense attorney, I was disappointed to read about a wrongful mortgage fraud prosecution that ate nearly a year of one man’s life. The New Times Miami reported Oct. 17 on the case of Ivanhoe Smester, who committed no mortgage fraud but had the bad luck to be friends with someone who had. Smester’s friend, Julio Llanessa, and Llanessa’s girlfriend, Laura Fernandez, had forged his name (misspelled as “Semester”) on a check cashed shortly before they fled the country. On that basis, federal marshals concluded that Smester knew where they were hiding. He did not, but he spent 10 months in jail on charges of bank and wire fraud before he was able to convince prosecutors. Llanessa and Fernandez are still at large.

Smester had never bought a home in the United States or worked in the mortgage industry. He grew up with Llanessa in the Dominican Republic, but the two hadn’t spoken in more than a year. Smester knew that Llanessa had been arrested for mortgage fraud, but didn’t know that Llanessa and Fernandez had jumped their bail and left the country. So he was surprised to get a March 2010 call from federal agents demanding to know where Llanessa was hiding. Soon, agents began harassing his family, calling his father in the Dominican Republic and showing up at his mother-in-law’s home in the U.S. In late April of 2010, he voluntarily turned himself in, only to be charged with fraud related to more than 10 Florida properties. He was also threatened with deportation away from his American wife and one-year-old son. His Miami mortgage fraud defense lawyer said prosecutors were simply “fishing” for information, and indicted him on very little evidence in an attempt to make him disclose Llanessa’s whereabouts. Of course, Smester didn’t know where Llanessa was — but it was only in February of 2011 that a judge dismissed the charges.

This story is familiar to me as a Fort Lauderdale mortgage fraud defense attorney, because variations on it happen more than we’d like to think. Sometimes, prosecutors make up their minds about a piece of evidence or a person, and refused to acknowledge evidence to the contrary until it’s unavoidable. This may be a natural human tendency — but in this case, it could have cost Smester’s life as he knew it. As it was, he spent 10 months in jail, faced unfounded criminal charges, missed a crucial time in his young son’s life and spent untold dollars defending himself from someone else’s mistake. The article doesn’t discuss how his lawyer helped him, but in general, the advice of an experienced attorney is crucial in cases like this. For example, Smester may not have needed to turn himself in; he certainly could have had a lawyer present at questioning.

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October 18, 2011

Prosecutors Decline to Retry Mortgage Fraud Defendants Whose Trial Ended With Hung Jury

A recent news item caught my eye as a Miami mortgage fraud defense lawyer, because it signals a victory for two people accused of mortgage fraud. According to the Miami Herald, prosecutors decided last week not to retry attorney Steven Stoll and former Plantation police officer Dennis Guaracino for their parts in an alleged mortgage fraud scheme. The two were accused of conspiring with Guaracino’s brother Joseph Guaracino, also a former Plantation police officer, to buy and flip properties, defrauding banks out of more than $16 million. All three were tried this year, but the trial ended in September with a hung jury. Two other police officers were convicted, but three more and an FBI agent were acquitted in the scheme. A pair of mortgage brokers reached plea deals. The announcement said prosecutors would retry Joseph Guaracino, but not the other two.

Numerous current and former police officers were involved in the alleged scheme, which led investigators to call their investigation “Operation Copout.” Joseph Guaracino ran a company called The Home Buyers Group, and Stoll owned a mortgage brokerage firm called The Lending House. They were accused of orchestrating the fraud through their companies, by having buyers lie about their income and intent to live in the home on loan applications. The mortgage brokers who plea-bargained, who worked for Stoll, testified that they forged documents for those loans. Joseph Guaracino was frequently given an ownership stake in the homes after closing, and the homes would then be flipped for profit. At the trial, Stoll and the Guaracinos pointed out that the brokers who testified against them had admitted to large amounts of fraud, and claimed that they didn’t know about or condone it.

As a Florida mortgage fraud defense attorney, I suspect these two defendants are not being retried because they have a fairly strong case. Observers outside the criminal justice system often forget that the standard for convicting someone is quite high: the charge must be proven beyond a reasonable doubt. If the jury in the previous case hung, it suggests that at least some jurors had reasonable doubts about the defendants’ guilt. And these had to be strong reasonable doubts, because throwing away the entire trial meant throwing away 54 days of their time. Prosecutors are still planning to retry Joseph Guaraino, so they likely believe the evidence against him is stronger — perhaps because he was running The Home Buyers Group. As a Fort Lauderdale mortgage fraud defense lawyer, I suspect prosecutors will need new allegations or stronger allegations against him if they want a different outcome.

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October 10, 2011

Trustee for Bankrupt Mortgage Firm Sues Deloitte for Audits That Failed to Detect Fraud

As a Miami mortgage fraud defense lawyer, I was interested to see a lawsuit that spotlights a less discussed area of mortgage fraud. As the Associated Press reported Sept. 26, two lawsuits allege that accounting giant Deloitte & Touche failed for years to detect fraud in its audits of Taylor Bean & Whitaker. Taylor Bean was a Florida mortgage company that committed billions of dollars’ worth of mortgage fraud between 2002 and its raid by federal agents in 2009. The firm’s collapse is blamed for the collapse of Colonial Bank, the sixth-largest bank failure in American history. Seven of its officers were criminally convicted. The lawsuit was brought by a bankruptcy trustee for Taylor Bean, whose job it is to recover money for creditors to the company. A Deloitte spokesperson said the lawsuits are without merit and that Taylor Bean lied to the accounting firm.

One of the two lawsuits is on audits of Taylor Bean; the other applies to Ocala Funding LLC, which purchased many millions of dollars’ worth of mortgages from Taylor Bean. Together, they cover a total of $7.6 billion in losses. Taylor Bean was accused of selling false mortgages, grossly overvaluing real mortgages, hiding overdrawn bank accounts and lying about liabilities. The lawsuits accused Deloitte of enabling this by continuing to certify the companies’ financial health despite signs that things were amiss. According to the article, those signs included analyzing large, questionable transactions just hours before the audit was due; accepting questionable verbal explanations from officers and accepting explanations that contradicted documents in Deloitte’s possession. An attorney for the plaintiffs said Deloitte abdicated its duty as a public watchdog. Analysts said the success of the lawsuit may depend on how well the bankruptcy trustee can separate him- or herself from the admittedly corrupt companies.

This story interests me as a south Florida mortgage fraud criminal defense attorney because it shows how widespread mortgage fraud was during the housing boom. People all up and down the mortgage lending chain were making lots of money in the middle of the last decade. For some people, this encouraged careless accounting or careless lending and borrowing practices. At the low end of the chain were people like “straw buyers” in mortgage schemes who lied about their income, often with the help of co-conspirators in a position to approve the loan. At the high end are people like the convicted Taylor Bean officers, who reportedly covered overdrafts by simply selling $1 billion worth of mortgages they did not own. With investors as well as homeowners now feeling financial effects of the housing downturn, I expect to see more allegations of fraud in my own work as a Fort Lauderdale mortgage fraud defense lawyer.

Continue reading "Trustee for Bankrupt Mortgage Firm Sues Deloitte for Audits That Failed to Detect Fraud" »

October 4, 2011

Chart Shows Marijuana Is Cheap in Florida Despite High Maximum Possession Sentence

I was interested to see a chart on marijuana possession laws recently published by Wired magazine. The chart is really a map of the United States, colored to show the average price of an ounce of marijuana in different areas. Labels for certain states give the maximum fine and jail time for being caught in possession of “low levels” of marijuana. This certainly differs between states. However, it’s interesting to see the wide variation of sentences available for the same crime in different areas — as low as a $100 fine with no jail time in some states, and as high as $1,150 or up to a year in jail in others. Florida is not singled out in this chart, but as a south Florida drug possession defense attorney, I know how our state stacks up — and it’s disappointing.

Here in Florida, simple possession of marijuana can be divided into two categories. Possession of 20 grams or fewer — about three-fourths of an ounce — is a misdemeanor crime carrying up to one year in prison and a fine of up to $1,000. This puts our state at the high end of the scale of penalties on the Wired chart. Of those listed, only Delaware has a higher fine, and only two states, Rhode Island and South Dakota, have maximum jail sentences as long. Of course, these are the maximum penalties. In real life, Florida defendants, and probably defendants in many other states, don’t necessarily face the maximum. For first offense with a relatively clean background, a defendant may get probation, community service or both, plus a driver’s license suspension. However, probation is not necessarily a light penalty — it severely restricts your movements and your freedom of association, and of course you must pass random drug tests. Repeat offenders are more likely to face the full year in jail. And if you’re caught in possession of more than 20 grams, even if it’s only an ounce (about 32 grams), the maximum penalty is up to five years in prison and a fine of up to $5,000. Defendants in both categories may be eligible for a drug diversion program (also known as Drug Court), but it generally helps to have an experienced Miami-Dade narcotics criminal defense lawyer on your side.

Personally, I believe marijuana should be legalized. In my work as a Fort Lauderdale drug crimes defense attorney, I see clients going to jail for offenses that harmed no one, except perhaps their health. Not only is this a waste of many individual lives, but it’s a waste of public resources, clogging the courts and the prisons for no real benefit to society. If marijuana were legalized and regulated in the way that alcohol is, the authorities would be able to control harmful behaviors like DUI while allowing responsible adults to consume it safely. As it currently stands, Florida residents face high penalties for simple marijuana possession, even though, as the Wired chart shows, marijuana is widely available enough to drive the price down through much of central Florida. Floridians caught with marijuana should get in touch with an experienced marijuana defense lawyer as soon as possible.

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October 3, 2011

Criminal Defense Attorney on Amanda Knox Verdict

As a Florida criminal defense attorney, I was pleased to read that an Italian appeals court has freed American Amanda Knox. Knox was a 20-year-old studying abroad in Italy when she was accused of the murder of her roommate, British national Meredith Kercher. Also convicted were Knox's boyfriend at the time, Italian national Raffaele Sollecito, and a transient born in the Ivory Coast, Rudy Hermann Guede. Knox was convicted in 2007 on the strength of DNA evidence that was later refuted, an interrogation that she said was entirely in Italian and a confession she said she signed under duress and without a translation. The trial also attracted a lot of media attention, with its lurid allegations that Knox and Sollecito murdered Kercher as part of an attempted sexual assault or even a Satanic cult. According to the Wall Street Journal, an Italian appeals court found today that there was insufficient DNA to connect Knox and Sollecito to the murder. Both were freed effective immediately.

This case is attracting major media attention because of the understandable desire to see an American freed from a foreign prison. But as a Miami criminal defense lawyer, I notice that many of the elements of this trial that cast doubt on the conviction are the same elements present in doubtful convictions at home. For example, confessions under duress are unfortunately not uncommon; police may be as unkind as they like in interrogations as long as they don't cross a few specific lines. DNA testing that does not meet standards is also a factor in some wrongful convictions -- and high-profile cases involving scandalous facts or allegations by prosecutors also tend to create problem convictions. For American defendants at home and abroad, this means it's absolutely vital to have the help of an experienced criminal defense attorney as soon as you know you are suspected of a crime.

If you're under investigation or have been charged with a crime in Florida, call Seltzer Law, P.A., for help. We answer the phone 24 hours a day and seven days a week because we know arrests don't stop after office hours. You can send us an email or call 1-888-THE-DEFENSE (1-888-843-3333).

September 28, 2011

New Immigration Enforcement Leads to 2,900 Arrests of Immigrants With Serious Criminal Charges

As a south Florida immigration attorney, I've written here before about the new U.S. Immigration and Customs Enforcement policy of concentrating efforts on aliens who were convicted of serious crimes. That policy has already resulted in a major series of arrests, as ICE announced today. The agency arrested 2,901 people throughout the United States who had past criminal convictions, including more than 1,600 with felony convictions and 151 convicted sex offenders. It said some, but not all, of the defendants were also guilty of overstaying a visa, illegal entry or illegal reentry after deportation.

Unfortunately, it's unclear from the release whether all of the people arrested fell into the kind of high-risk category ICE meant when it announced its re-prioritization in August. Among the arrests the agency listed was one of a man who had been convicted of second-degree murder in 1975 and of fifth-degree sale of a controlled substance in 1995. Selling drugs is a crime, but many people would say it's not nearly as serious as the murder charge -- and that charge is more than 35 years old. If others among the 2,901 people arrested are also facing petty drug charges, this operation may be the waste of resources ICE was trying to prevent. As a Miami immigration violations lawyer, I strongly advise people with any kind of immigrant status to seek legal advice the second they get into legal trouble, because under the right circumstances, even a small crime can lead to their removal.

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September 28, 2011

Eleventh Circuit Rejects Actual Innocence Claim From Defendant Challenging Career Offender Sentence – McKay v. U.S.

As a weapons violations defense lawyer in Miami, I was interested to read about a Florida defendant who argued that a concealed weapons violation was not enough to enhance his sentence for being a career offender. In McKay v. United States, Torey McKay was charged with possession and distribution of both cocaine and crack. His sentence for these charges was enhanced by his past convictions for selling cocaine and for carrying a concealed weapon, which the court called a crime of violence. This inflated his minimum sentence by more than nine years. He argued that because carrying a concealed weapon is not a crime of violence, his sentence should be set aside or reduced. But the Eleventh U.S. Circuit Court of Appeals found that McKay had failed to bring up a necessary argument on appeal, so it affirmed the sentence.

McKay pleaded guilty in 2005 to four drug charges without a plea agreement. He was ultimately sentenced to the lowest sentence in the range for career offenders, 262 months. He did not object at the time to the career offender designation. However, in 2007, the Sentencing Commission allowed retroactive changes to sentences for crack offenders, and McKay moved pro se to have his sentence reduced. The district court denied this because of McKay’s status as a career offender. He did not appeal. In 2008, the Supreme Court found that an alcohol DUI is not a violent felony under the Armed Career Criminal Act, and the Eleventh Circuit followed with a ruling extending the Supreme Court’s logic to sentencing guidelines for crimes of violence, finding that carrying a concealed weapon is not a crime of violence. McKay moved pro se to set aside or correct his sentence under these new rulings. Insofar as the argument had been foreclosed by his failure to make it earlier, he argued that he should be excused for this procedural error on the grounds of “actual innocence” of the career offender designation. The trial court denied it, and McKay appealed.

The Eleventh Circuit sided with the trial court, finding that McKay’s claim of sentencing error was barred because it was procedurally defaulted by his failure to bring it up earlier. Thus, the Eleventh expressly declined to reach the issue of whether a sentencing claim is cognizable under the relevant section of law. Under the procedural default rule, defendants like McKay must make their arguments on direct appeal, or they cannot use them as the basis for a motion to change a sentence. The Eleventh said it was “beyond question” that McKay did not make his claim on direct appeal; he filed no direct appeal. McKay acknowledged that, arguing that he should be excused on the grounds that he is actually innocent of the sentence enhancement for being a career offender. Actual innocence can apply to actual innocence of a capital sentence, but circuit courts have divided on whether it applies to non-capital sentences. The Eleventh declined to take a side in this split, instead ruling that McKay’s claim fails regardless because his claim is one of legal innocence, not factual innocence. He was not factually innocent of carrying a concealed weapon, the court reasoned; he was arguing that that crime is not legally sufficient to make him a career offender. Thus, he could not claim the factual innocence exception, the appeals court said, and his claim was barred by its procedural defect.

As a Fort Lauderdale drug crimes criminal defense attorney, I am disappointed that the Eleventh Circuit declined to reach the merits of this defendant’s claim. If McKay were sentenced for the same crimes today, he would likely face far less time in prison than the total of nearly 22 years he faces — thanks to the decisions on crack sentencing and career offender status. This may not be the “miscarriage of justice” the Eleventh Circuit says actual innocence claims should be, but surely it doesn’t make much sense that sentences continue even after those who make the sentences change the rules. Unfortunately, one of the best ways to avoid facing this kind of overwhelming sentence is to avoid being convicted in the first place, which is why people facing serious drug and weapons charges should talk to a south Florida criminal defense lawyer as soon as they realize they will be charged.

Continue reading "Eleventh Circuit Rejects Actual Innocence Claim From Defendant Challenging Career Offender Sentence – McKay v. U.S. " »

September 23, 2011

Defendant Must Be Aware of Child in Stolen Car to Be Charged With Kidnapping – Delgado v. State of Florida

Getting to know — and prove — the mindset of the defendant is an important part of my work as a Miami-Dade criminal defense attorney. To get a conviction for many crimes, prosecutors must show that the defendant had a certain criminal mindset, or that he or she knowingly committed the crime. Without that element of intent, the charge may be unprovable. This is a vital part of criminal defense law, which is why I was pleased to see a recent revision to a Florida Supreme Court opinion on intent under Florida’s kidnapping statute. In Delgado v. State of Florida, Rogelio Delgado stole a pickup truck with a sleeping toddler in the backseat. When the baby and the car were recovered, Delgado was charged with and convicted of kidnapping, among other charges. The Florida Supreme Court struck down the kidnapping charge, however, saying the prosecutors failed to prove Delgado knew the child was in the car.

Juan Gonzalez took his aunt, his girlfriend and the girlfriend’s two-year-old daughter to pick up furniture in Hialeah. Gonzalez and his aunt left the girlfriend and the little girl in the truck, but called the girlfriend into the store to help move the furniture. The girlfriend left the truck running and the doors unlocked, with the sleeping child in her car seat in the back. Delgado and an accomplice stole the truck within minutes. Officers found the truck about thirty minutes later, three miles away, with the radio and some tools missing and some damage to the property. The little girl was upset but unharmed. Delgado was found and charged with grand theft, auto theft, burglary of an occupied conveyance and kidnapping with the intent to commit a felony. At his trial, prosecutors introduced no evidence that Delgado knew the little girl was in the car. Nonetheless, he was convicted of all four charges. He was sentenced to life on the kidnapping charge; thirty years for the burglary; ten years for the auto theft; and time served for theft. He appealed the kidnapping charge to the Third District Court of Appeal, but unsuccessfully.

He had better luck with the Florida Supreme Court. Kidnapping requires intent, the court said; in this case, intent to commit auto theft. However, a test developed by earlier Florida court rulings further requires that kidnappings must not be incidental to another crime, inherent to another crime and have separate significance. The Third District inferred that Delgado must have become aware of the child in the course of stealing property out of the car, and found that the “special danger” posed to her made the kidnapping not incidental to the auto theft. However, the Supreme Court found that this was a misapplication of caselaw. Under the plain wording of the law, it said, defendants must be aware of their victims from the start, or they cannot have the requisite intent to commit kidnapping. Continued confinement after Delgado did (presumably) become aware of her is irrelevant to the intent aspects of kidnapping. Furthermore, the high court said, the prosecutors in Delgado’s original case had never shown that he knew the child was in the truck when he entered it. In fact, a detective’s testimony supports the idea that it would be difficult to see her until specifically looking into the backseat. Thus, the Supreme Court reversed his conviction for kidnapping.

This is not a situation I encounter often in my work as a south Florida theft criminal defense lawyer — fortunately for parents. As the Supreme Court noted, it’s not disputed that the little girl could have been in danger during the theft of the truck or after it was abandoned. However, in the interests of justice, it is vital that prosecutors apply the same rules to this kind of accidental kidnapping that they would to any other crime. And under Florida law, the intent of the defendant matters. In fact, the high court suggested near the end of the opinion that Delgado could also have successfully challenged the “occupied” portion of his conviction for burglary of an occupied vehicle. As a Fort Lauderdale theft criminal defense attorney, I appreciate that the court system distinguishes between accidental and intentional crimes and is willing to reduce sentences accordingly.

Continue reading "Defendant Must Be Aware of Child in Stolen Car to Be Charged With Kidnapping – Delgado v. State of Florida" »

September 14, 2011

Waiving Right to Appeal Means Waiving Right to Challenge Sentencing Errors, Eleventh Rules – U.S. v. Smith

As a south Florida drug crimes defense attorney, I know that federal drug crime sentences can be very harsh. During the height of the so-called War on Drugs, sentences for drug crimes were heavily inflated, and as a result, it’s still possible to serve a long sentence for a nonviolent crime. Another major criticism of federal drug law was addressed last year with the passage of the Fair Sentencing Act, which reduced the sentences for crack cocaine crimes, which carried sentences 100 times greater than sentences for the exact same crimes involving powdered cocaine. Critics pointed out that crack is disproportionately an African American drug, while powdered cocaine tends to be abused and dealt by white people. The FSA was behind the appeal in United States v. Smith, in which defendant Arthur Smith ultimately did not get his sentenced changed.

Smith was arrested in 2009 for his involvement in a South Florida drug distribution ring and on June 7, 2010, agreed to plead guilty to one count of possession of 50 grams or more of cocaine base with intent to distribute. The plea agreement included a waiver of Smith’s right to appeal the sentence or the manner in which it was imposed unless it departed upward from sentencing guidelines or exceeded the maximum. The court took pains to confirm this at Smith’s plea hearing. In August of 2010, the FSA was passed. Smith objected to a pre-sentencing report that did not take the FSA into account. At the October sentencing hearing, the court declined to apply the FSA but noted that later legal developments might make the FSA relevant. Those legal developments came in the form of U.S. v. Rojas, an Eleventh Circuit decision finding that the FSA applies if the crime took place before the law was enacted but the sentence took place after.

The Eleventh agreed that this is exactly Smith’s situation, and the FSA should apply. This would cut his mandatory minimum sentence in half, the court noted. It may or may not also lower his base offense level, the Eleventh said, because the offense had to do with powdered cocaine. However, the court found that none of this matters, because Smith’s appeal waiver prevents him from enforcing his rights. None of the exceptions to the appeal waiver apply in this case: the sentence does not vary from the statutory maximum or depart upward from guidelines. Indeed, previous Eleventh Circuit caselaw shows that a valid appeal waiver includes a waiver of the right to appeal blatant error by the court — not just a refusal to consider an issue that later became important. If waivers only waived issues that were meritless, the Eleventh said, they would be useless to both sides. Thus, it upheld the defendant’s sentence.

This is a disappointing case for Miami narcotics criminal defense lawyers like me. Smith would have had every right to be sentenced under the FSA even at the time of his sentencing; the judge simply declined to apply the FSA. In order to make his plea bargain, Smith had to agree to the government’s conditions, which included a waiver of his right to challenge that in the future, even though the judge expressly noted that the decision was open to a future challenge. Thus, there is little recourse for defendants except to refuse a plea bargain, or try to negotiate away the waiver as it applies to specific and potentially important issues. An experienced Fort Lauderdale drugs criminal defense attorney can help defendants identify those potentially important issues and negotiate to keep them out of the waiver, which is one reason why an attorney’s help can be vitally important.

Continue reading "Waiving Right to Appeal Means Waiving Right to Challenge Sentencing Errors, Eleventh Rules – U.S. v. Smith" »

September 11, 2011

Defendant Must Be Aware of Child in Stolen Car to Be Charged With Kidnapping – Delgado v. State of Florida

Getting to know — and prove — the mindset of the defendant is an important part of my work as a Miami-Dade criminal defense attorney. To get a conviction for many crimes, prosecutors must show that the defendant had a certain criminal mindset, or that he or she knowingly committed the crime. Without that element of intent, the charge may be unprovable. This is a vital part of criminal defense law, which is why I was pleased to see a recent revision to a Florida Supreme Court opinion on intent under Florida’s kidnapping statute. In Delgado v. State of Florida, Rogelio Delgado stole a pickup truck with a sleeping toddler in the backseat. When the baby and the car were recovered, Delgado was charged with and convicted of kidnapping, among other charges. The Florida Supreme Court struck down the kidnapping charge, however, saying the prosecutors failed to prove Delgado knew the child was in the car.

Juan Gonzalez took his aunt, his girlfriend and the girlfriend’s two-year-old daughter to pick up furniture in Hialeah. Gonzalez and his aunt left the girlfriend and the little girl in the truck, but called the girlfriend into the store to help move the furniture. The girlfriend left the truck running and the doors unlocked, with the sleeping child in her car seat in the back. Delgado and an accomplice stole the truck within minutes. Officers found the truck about thirty minutes later, three miles away, with the radio and some tools missing and some damage to the property. The little girl was upset but unharmed. Delgado was found and charged with grand theft, auto theft, burglary of an occupied conveyance and kidnapping with the intent to commit a felony. At his trial, prosecutors introduced no evidence that Delgado knew the little girl was in the car. Nonetheless, he was convicted of all four charges. He was sentenced to life on the kidnapping charge; thirty years for the burglary; ten years for the auto theft; and time served for theft. He appealed the kidnapping charge to the Third District Court of Appeal, but unsuccessfully.

He had better luck with the Florida Supreme Court. Kidnapping requires intent, the court said; in this case, intent to commit auto theft. However, a test developed by earlier Florida court rulings further requires that kidnappings must not be incidental to another crime, inherent to another crime and have separate significance. The Third District inferred that Delgado must have become aware of the child in the course of stealing property out of the car, and found that the “special danger” posed to her made the kidnapping not incidental to the auto theft. However, the Supreme Court found that this was a misapplication of caselaw. Under the plain wording of the law, it said, defendants must be aware of their victims from the start, or they cannot have the requisite intent to commit kidnapping. Continued confinement after Delgado did (presumably) become aware of her is irrelevant to the intent aspects of kidnapping. Furthermore, the high court said, the prosecutors in Delgado’s original case had never shown that he knew the child was in the truck when he entered it. In fact, a detective’s testimony supports the idea that it would be difficult to see her until specifically looking into the backseat. Thus, the Supreme Court reversed his conviction for kidnapping.

This is not a situation I encounter often in my work as a south Florida theft criminal defense lawyer — fortunately for parents. As the Supreme Court noted, it’s not disputed that the little girl could have been in danger during the theft of the truck or after it was abandoned. However, in the interests of justice, it is vital that prosecutors apply the same rules to this kind of accidental kidnapping that they would to any other crime. And under Florida law, the intent of the defendant matters. In fact, the high court suggested near the end of the opinion that Delgado could also have successfully challenged the “occupied” portion of his conviction for burglary of an occupied vehicle. As a Fort Lauderdale theft criminal defense attorney, I appreciate that the court system distinguishes between accidental and intentional crimes and is willing to reduce sentences accordingly.

Continue reading "Defendant Must Be Aware of Child in Stolen Car to Be Charged With Kidnapping – Delgado v. State of Florida" »

September 7, 2011

Prosecutors Need Not Prove Actual Notice of Sex Offender Registration Requirement – U.S. v. Crowder

As a south Florida sex crimes criminal defense attorney, I work with clients who are subject to sex offender registration laws, or will be if convicted. When I handle sex cases, in fact, I work hard to avoid sex offender registration requirements when possible, because they are a heavy burden to carry and last for the rest of the defendant’s life. In fact, thanks to the federal Sex Offender Registration and Notification Act, defendants are required to register in every state and to notify officials promptly if they move between states. And as the Ninth U.S. Circuit Court of Appeals reminded us in United States v. Crowder, there are heavy consequences for ignoring these registration laws. In this case, Kevin Leroy Crowder moved from the state of Washington to Montana about a year after finishing a prison sentence for child molestation. The court ruled that he can be prosecuted for failing to register when he moved despite no “actual knowledge” of the requirement.

Crowder signed a form disclosing the notice and registration requirements when he started his prison sentence, and another with similar disclosures when he registered on release from prison. Despite the registration requirement and a sentence of three to four years of probation, he moved from Washington to Montana about a year after his release, notifying neither state. He camped for a few months in a national forest but was arrested in a convenience store in Bozeman. At a bench trial, he pleaded not guilty to violating SORNA and unsuccessfully argued that he did not receive “actual notice” of the requirement. In essence, he said the statute requires not only that he knowingly fail to register — a fact he did not dispute — but that he know that SORNA requires registration. He was convicted and appealed.

The Ninth Circuit declined to overturn the conviction. In general, it said, the Supreme Court reads “knowingly” in a way that does not criminalize innocent conduct. However, it found that failure to register is not innocent conduct. Registrable sex offenders know or should know about their registration requirements “Because state registration schemes have been around for years in all 50 states[.]” Because that failing to register is already illegal at the state level, prosecutors need not show defendants knew about the exact statute they were violating; it is enough that they knew or reasonably should have known that the conduct was illegal. Nor did Congress show any intent to have the statute interpreted otherwise, the Ninth said. It also rejected Crowder’s argument that the law requires actual notice, through provisions asking the U.S. Attorney General to design notification for offenders not notified in other ways. This language does not suggest a requirement for the government to prove the offender knew about SORNA. In so ruling, the Ninth joined nearly every other circuit court in finding no notice requirement.

As a Fort Lauderdale sex offender registration defense lawyer, I am disappointed but not surprised by this ruling. Sex offender registration is generally quite strict, and courts are not inclined to show lenience to people who violate them unless there is a mitigating factor like genuinely trying to register and being unable to. Nonetheless, I believe this decision, and others like it, does a disservice to offenders who have been given bad information from their local police agencies and are not in a position to discover more. Sex offenders frequently live on the margins of society, in part because it’s tough for them to find jobs and in part because residency restrictions make it tough to find living space (which in turn contributes to the job problem). Someone who has never been out of Florida before may not realize that other states even have registration requirements, which would undermine the Ninth Circuit’s reasoning. As a Miami registration violations attorney, I would like to be able to defend my clients by pointing to this kind of actual ignorance.

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August 31, 2011

Florida Supreme Court Rules Trial Judge May Not Arbitrarily Round Up Sentences – Cromartie v. State of Florida

Part of my job as a Miami criminal defense lawyer is to secure fair and reasonable sentences for my clients (when they are convicted). Every sentence has a range, but it can be affected by multiple factors, including prior convictions as well as the judge’s own discretion. Judicial discretion can keep defendants from serving unfair sentences, but it can also be abused. That was the contention of Carlos Cromartie in Cromartie v. State of Florida, a recent decision from the Florida Supreme Court. Cromartie did not contest his conviction for selling cocaine within 1,000 feet of a church, but he did argue that the trial judge’s policy of always rounding up sentences to full years was illegal under a previous Florida decision, Hannum v. State. The First District Court of Appeal upheld the sentence, but the Florida Supreme Court reversed and remanded it for resentencing.

Cromartie was convicted of both cocaine trafficking and possession of cocaine for sale within 1,000 feet of a church. His original sentence was computed according to a sentencing scoresheet that gave him a sentence of 93.975 months, which she rounded to 94 months, or 7.83 years. She then rounded it to 8 years. Cromartie’s attorneys later filed to change the sentence because the trafficking offense had been calculated as a Level 8 offense instead of Level 7. The new minimum sentence was 6.16 years, and the judge again said she would round it to 7 years. The attorney for Cromartie objected that the judge should use the same fraction of years, 0.2, that she did before. The judge said she always rounds up to full years because “that’s just my way” and “I don’t operate with that kind of precision.” On appeal, the First District Court of Appeal agreed with Cromartie that the judge’s rounding-up policy violates due process, but found he had not preserved the issue for appeal. Cromartie appealed again to the Florida high court.

That court reversed the First District. Under Hannum, it said, the Second District had found that the post-trial motion Cromartie used was not the correct way of preserving issues for appeal. However, the high court said, the Hannum court also found that a fundamental error in the sentencing process is always automatically preserved for appeal because it is equivalent to a denial of due process. The Florida Supreme Court adopted that rule in this case, and accepted jurisdiction to decide whether the error in Cromartie’s case was a due process violation. Cromartie’s post-trial motion objecting to the rounding-up policy could not raise the policy as a sentencing error, the court said, but the sentencing error in question was nonetheless a fundamental one. The judge improperly and arbitrarily extended Cromartie’s incarceration. Thus, it quashed the decision and sent it back for resentencing. A concurring opinion by Judge Pariente disagreed with the majority, saying the issue had been properly preserved for appeal. And a dissent by Judges Canady and Polston argued that the “minor impact” of the judge’s rounding-up policy on Cromartie’s sentence was not fundamental error.

As a south Florida criminal defense attorney, I suspect the judges would not find the impact so minor if they were arbitrarily obliged to serve ten months in prison. This decision is good news for Florida defendants and their families. Our judicial system requires prosecutors to prove their cases beyond a reasonable doubt, because its designers recognize that putting someone in prison is a grave responsibility that juries should be very sure about. The same philosophy underlies the high court’s decision on sentencing — people should be sentenced to the time indicted by their offenses, not that time plus however many more months it takes to create a round number. As a Fort Lauderdale drug crimes defense lawyer, I appreciate the court’s willingness to acknowledge that people convicted of crimes still have rights, and loved ones who also suffer while they are gone.

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August 22, 2011

South Florida Immigrants Should Be Careful After Immigration Enforcement Announcement

As a Miami-Dade immigration attorney, I was very interested to see an announcement last week of a major shift in immigration enforcement priorities. As the Associated Press reported, the Obama administration has ordered Homeland Security to prioritize deportation cases involving people convicted of serious crimes and de-prioritize deportation of people who have committed no or minor crimes. The move affects about 300,000 pending deportation cases, which will be reviewed to see which ones meet the new criteria. White House officials said the new guidelines also apply to future cases, meaning law enforcement will be asked to avoid arresting or prosecuting immigrants with no serious criminal history. Homeland Security Secretary Janet Napolitano said the change would focus DHS resources on the highest-priority cases.

The administration’s announcement changed no laws. Individual cases will not be dropped or modified automatically, although an experienced south Florida immigration lawyer may be able to make changes for individual clients. But the change represents a major shift in policy, because previously, law enforcement officers were permitted or even required to deport every immigrant they knew to be illegal. Under previous policy, especially the controversial Secure Communities program, immigrants were being referred for deportation even when they were accused of nothing at all, had charges dropped or were convicted only of misdemeanors. Even some who only came to the police’s attention as victims of crimes ended up in deportation proceedings, critics said. Under the new order, authorities are asked to prioritize people who are known gang members, serious criminals, a threat to national security, recent arrivals or repeat immigration offenders. DHS will review the 300,000 pending cases on a case-by-case basis.

This is great news for members of south Florida’s vibrant immigrant community who are in immigration trouble or could be. But as a Fort Lauderdale immigration violations attorney, I want immigrants in trouble to know that the announcement will not necessarily affect their cases. There are no new laws, and prosecutors may or may not drop cases of people who should be “low-priority” under the new rules. That means that even if you are in the low-priority category, you may still need an attorney’s help to have your case dropped. Also, there are no new forms to fill out, nothing to sign up for and no fees to pay. Do not give money to people who claim they can help you file for “amnesty,” a green card or any other federal benefit. Scammers who call themselves immigration consultants or notarios may claim they can help for less than a lawyer would cost, but they often take clients’ money and disappear.

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August 18, 2011

Miami-Dade Judge Tosses Out Drug Cases Because of 'Flawed' Law

Because I am a Miami drug crimes defense attorney, I was interested to see a news item about a judge's decision that could have a major effect on drug cases in south Florida. As the Miami Herald reported, Miami-Dade Circuit Judge Milton Hirsch threw out 39 drug cases on Wednesday because of a federal court ruling against a 2002 change to Florida law. That 2002 change allowed prosecutors to prosecute people for drug possession even if they did not realize they were carrying drugs; federal district judge Mary Scriven ruled three weeks ago that this was "draconian." In response, Hirsch dismissed all 39 drug cases, regardless of whether the defendants claimed they didn't know they were carrying the drugs. The defendants are still in jail because Hirsch suspended the ruling for a week to allow prosecutors to appeal; they say they will.

This could open new defenses for people facing drug charges here in south Florida. If you have been convicted of narcotics charges and you didn't realize you were carrying the drugs, you may also be able to seek release from prison or other relief. To discuss your legal options, call Seltzer Law, P.A. right away at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

August 17, 2011

Florida Appeals Court Rules Defendant Not Entitled to Strike Juror Despite Past Burglary – Mattaranz v. State

As a Miami-Dade burglary criminal defense attorney, I was interested to read a recent ruling from the state appeals court that serves South Florida, the Third District Court of Appeal. In Rafael Mattaranz v. State of Florida, the defendant appealed his conviction for murder and burglary on the grounds that he should have been permitted to strike a juror. The juror had expressed concerns during voir dire that she might “lean toward the State” because she had been a victim of burglary and her cousin had been a victim of identity theft. She eventually concluded that she would need to hear the entire case before deciding guilt, and sat on the jury. Mattaranz appealed his conviction, arguing that the trial court should not have denied his challenge to the juror for cause.

The juror originally told the court about a past burglary of her family, which happened when she was a child, and the identity theft. In particular, she said she “holds a grudge” against the identity thief because of the way it affected her family. Under questioning, she said she could have an open mind but leaned more toward the State, but after another explanation, she agreed that she could put aside her feelings in order to decide whether Mattaranz was guilty beyond a reasonable doubt. She said repeatedly that she would have to hear the entire case before deciding guilt. The defense lawyer challenged her for cause, but the court denied the motion, so the defense attorney used a peremptory challenge on her. However, at the end of voir dire, the defense lawyer moved for another peremptory challenge, arguing that five jurors should have been struck for cause, and did not name the juror in question. Only one juror deemed objectionable by the defense eventually sat on the jury that convicted Marraranz.

On appeal, the Third District upheld the trial judge’s actions. Under well-established law, it wrote, trial judges must decide whether jurors can lay aside prejudice or bias and render an impartial verdict; and those decisions must be upheld if the record supports them. In this case, the court found enough evidence that the juror in question was able to be fair and impartial. Equivocation is not itself evidence of lack of impartiality, it noted. Thus, it could not find that the trial judge’s decision was incorrect.

This issue is highly relevant to my work as a south Florida murder criminal defense lawyer. It has been said that cases are won or lost according to who sits on the jury, and in fact, the Supreme Court has found that excluding jurors based on their race violates the defendant’s civil rights. As a result, every competent criminal defense attorney is very careful about the selection of the jury, even though this is only a preliminary to the evidence presented at trial. When looking for jurors who might be less than favorable, as a Fort Lauderdale criminal defense attorney, I look for people who might have any kind of bias against the defendant or the crime of which the defendant is accused. This can include being a victim of a past crime, as in this case; racial or gender bias; personal acquaintance and more.

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August 10, 2011

Montana Supreme Court Declines to Suppress Test Results From Intoxilyzer in DUI Case – State v. Johnston

Here in Florida, and in several other states, the standard breath testing machine is the Intoxilyzer 8000. This is the most recent in a series of “breathalyzer” tests used by Florida law enforcement to determine whether drivers are over the 0.08 legal limit. Like all machines, the Intoxilyzer must be maintained and inspected to ensure that it gives correct readings. If police agencies don’t do this, any DUI arrests they later make are suspect and could be challenged by an experienced south Florida drunk driving criminal defense lawyer. A similar situation in Montana created that state’s Supreme Court ruling in State v. Gavin Johnston. Johnston successfully moved in trial court to suppress Intoxilyzer evidence, but the state high court overturned it, ruling that the Intoxilyzer did not need to be field-tested as often as the trial court believed.

Johnston was arrested and breath-tested on April 23, 2010, using the Intoxilyzer 8000. The machine had been inspected and calibrated on April 14 and tested on April 15. He blew 0.12 and was charged with fourth-offense DUI. At trial, Johnston moved to suppress his test results, arguing that the machine should have been field-tested within a week of his breath test. This assertion was based on the Montana Supreme Court’s ruling in State v. Gieser, earlier in 2011, which referred to state administrative rules requiring that breath test machines be inspected and calibrated on a “weekly basis.” The trial court noted that the rules had been changed in 2007 and now required monthly testing and calibration. Nonetheless, it said it was bound by state Supreme Court precedent and suppressed the test result. The state appealed.

The Montana Supreme Court made short work of the issue. The undisputed facts show that the machine was properly calibrated and tested according to the most recent 2007 rules, it noted. The statement in Gieser that machines should be tested weekly was an error because the rule had been changed. Furthermore, it said, its decision in Gieser was not about when breath test machines should be tested; it was about ineffective assistance of counsel. Because the testing of the machine was not an issue in that ase, the incorrect statement was dicta without binding force. A previous opinion, State v. White, was not controlling because the test in the case was administered before the rule change. Thus, it overturned the trial court’s decision and ruled that Johnston’s breath test was legal and admissible.

As a Miami DUI defense attorney, I’m happy to say that the calibration and testing requirements in Florida law are not generally disputed. However, defense lawyers frequently do dispute whether those requirements have truly been met. In some cases, law enforcement officers have been known to put machines into service even when they fail tests, sometimes unplugging the machine when it clearly will fail. Machines also sometimes flag the breath sample as insufficient even when the driver has blown more than enough air, because of a software problem. And Florida has seen some high-profile challenges in the last few years to the practice of not releasing the source code to the machine’s software, which some Fort Lauderdale intoxicated driving defense lawyers say makes it impossible to see if the test is accurate. As of this spring, the machine was not even admissible in two Florida counties, casting doubt on its future — which is why Florida DUI defendants should think twice before pleading guilty.

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August 3, 2011

Florida Supreme Court Allows Search Evidence Despite Error on Warrant – Moreno-Gonzalez v. State

As a Miami-Dade drug crimes criminal defense attorney, I often look for problems with a search when I’m representing drug defendants. With drug crimes, searches are very important because even non-possession crimes are difficult to prove without evidence that the defendant possessed the prohibited narcotics. That’s why I was interested to see a recent Florida Supreme Court decision in Moreno-Gonzalez v. State of Florida, a case involving possession of relatively large quantities of marijuana. Alfredo Moreno-Gonzalez of Dade County wanted to suppress evidence from a police search that found the drugs on his property, because a police detective failed to sign the affidavit for the warrant. The trial court agreed that the evidence should be thrown out, but the Third District Court of Appeal reversed that and the Florida Supreme Court upheld it.

Miami-Dade detectives believed there was a marijuana growing operation at property owned by Moreno-Gonzalez. Detective Lourdes Hernandez submitted an affidavit and got a search warrant for the property, but despite initialing every page and swearing to the affidavit’s truth, and despite the judge’s approval, she forgot to sign it as state law requires. A later search turned up 47.5 pounds of marijuana on the property, and Moreno-Gonzalez was arrested. Before his trial, he moved to suppress the evidence because of the forgotten signature, plus substantial discrepancies between the accounts of the officers involved in the search. The trial court granted this under state law only, explicitly saying that no constitutional arguments would be addressed. The state appealed, however, and the Third District overturned that decision, citing U.S. Supreme Court caselaw saying that technical requirements of elaborate specificity are not proper for warrant affidavits. Thus, because Fourth Amendment caselaw is incorporated into the Florida Constitution by reference, the Third District ruled the lack of a signature was but a “technical” flaw.

On appeal, the state high court upheld the result, but not the appeals court’s reasoning. It started by ruling that this was not a state or federal constitutional issue, but one of statutory compliance. It then went on to note that it’s undisputed that Hernandez did not sign the warrant. Nonetheless, the Supreme Court did not find this fatal to the state’s case. The purpose of signing a search warrant is to prevent perjury, the court said. In this case, however, there was an added level of protection because Hernandez swore to the truth of the affidavit in front of the judge who signed the warrant, and initialed each page. Nothing in the record shows that the failure to sign was anything but a mistake, the court noted. It noted that it does not generally approve of carelessness with warrants, but said this was a technical error that should not stymie justice. Furthermore, it noted that Florida law allows authorization by oath as well as by signature. Thus, it upheld the Third District with different reasoning. It remanded the case with express instructions for the trial court to consider the credibility of the law enforcement witnesses, which may form another basis for suppressing the evidence.

There is a lot in this decision to interest a Fort Lauderdale narcotics criminal defense lawyer like me. I certainly agree with the high court that law enforcement officers should be held responsible for mistakes with search warrants. It’s disappointing that this failure to sign the affidavit was dismissed as a minor technical flaw, but as the court noted, this is not the only basis for questioning the warrant’s validity. I also appreciate, as a south Florida drug crimes defense attorney, that the high court thought the differing stories provided by various law enforcement officers was a cause for concern. If one of the officers is not telling the truth, he or she must be identified and removed before he or she can convict someone with a lie.

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July 27, 2011

Eleventh Circuit Rules Trial Court Should Correct Misunderstandings of Defendant Representing Himself – U.S. v. Ly

As a south Florida criminal defense attorney, I believe very strongly that representing yourself is almost never a good idea in criminal cases. Even a well-educated person who understands the courts may still be too emotionally connected to the case to be objective. Then, a small mistake can sometimes bring down the entire case unnecessarily. So I was pleased to see that the Eleventh U.S. Circuit Court of Appeals gave a pro se (acting as his own attorney) defendant a break in United States v. Ly. Hung Thien Ly of Georgia appealed his eight-year sentence for unlawfully distributing controlled drugs without a prescription, arguing that the judge in his trial should have corrected his clear misunderstanding of his right to testify. The Eleventh agreed.

Ly was a doctor accused of writing medically unnecessary prescriptions. He asked the court for appointed counsel because he was indigent, but the court denied this (and was later affirmed) on the grounds that Ly was only indigent because he had transferred all of his assets to his wife. Ly then announced that he would represent himself, and continued down that path despite warnings from the court about the risks of doing this. After all of Ly’s witnesses had finished, the trial judge called him to the bar and asked if he intended to testify. The Eleventh said the transcript of this conference showed that Ly did not understand that he could testify without anyone to ask him questions. The court did not correct Ly, and he was later convicted. He appealed, arguing among other things that his right to testify was denied by the court’s refusal to clarify it.

On appeal, the Eleventh noted that Ly’s misunderstanding was understandable given his lack of legal experience. Nonetheless, it said, defendants have a right to testify (or choose not to testify) in criminal cases — and this right is protected only when the defendant makes that choice knowingly. Ly didn’t have the knowledge to make that decision knowingly, the court wrote. The court rejected Ly’s argument that courts should discuss the choice with pro se defendants ahead of time, because it could improperly influence their choices. It also rejected the government’s contention that the district court has no responsibility in a situation like Ly’s. The right to testify is fundamental, the court wrote, and caselaw requires extra protection for pro se defendants. Instead, the Eleventh ruled that the trial court, once already engaged in dialogue with Ly, should have corrected his mistaken impressions about his right to testify. Thus, it reversed and remanded the conviction.

As this case shows, there are many reasons to consider hiring a Miami-Dade drug crimes criminal defense lawyer if you’re accused of a crime in south Florida. Without an attorney, Ly was unable to testify on his own behalf, and the witnesses that he called were unable to give the testimony he relied on. As a result, the Eleventh noted, the jury in his case simply had no narrative to rely on except the one provided by the well-funded prosecution. This is not to say that Ly would not have been convicted if he had had an attorney; no reputable lawyer would promise specific results. But in general, it pays to have someone on your side who understands the justice system, its basic rules and the personalities of judges and juries. A Fort Lauderdale narcotics criminal defense attorney costs more money than representing yourself, but you should always balance this against the personal cost of a criminal conviction.

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July 20, 2011

Plaintiff Cannot Show Violation of Federal Rights Behind Denial of DNA Testing Request – Van Poyck v. McCollum

As a Miami-Dade criminal defense attorney, I’m in favor of more access to exculpatory evidence when defendants are facing the death penalty or other very serious penalties. So I was disappointed in the ruling by the Eleventh U.S. Circuit Court of Appeals in Van Poyck v. McCollum, denying William Van Poyck a chance to request access to DNA testing related to his murder conviction. Van Poyck was already in prison when he and another inmate attempted to escape, leading one of them to shoot a guard to death. Van Poyck was convicted of the guard’s murder and sentenced to death, and this was upheld by the Florida Supreme Court. In 2003, he filed a lawsuit seeking the clothes he and the other inmate wore during the murder, to perform DNA testing he claims would show the other inmate pulled the trigger. After this was denied, he re-filed in federal court and his claim was denied for failure to state a valid claim.

The Eleventh first looked at whether Van Poyck had waited too long to file. The state argued that the statute of limitations, or deadline to sue, should have started running when DNA testing became widely available. The court disagreed, saying Florida’s four-year statute of limitations for personal injury applies. Under Florida law, the statute of limitations begins running when the facts supporting the case become apparent. The court said this was when the Florida state DNA lawsuit was exhausted. It specifically said, however, that it was ruling only on this case and not making a general statement about when plaintiffs should sue or whether denying evidence is a continuing tort.

It next turned to the meat of the issue, whether Van Poyck had a valid claim. In order to bring a claim, it noted, he needs to show that Florida officials denied a federally protected right when denying him access to the DNA evidence. Van Poyck argued that he should have a due process right to the information. However, the Eleventh pointed out, a substantive due process right to DNA testing was expressly rejected by the Supreme Court in 2009’s District Attorney’s Office for the Third Judicial District v. Osborne. Van Poyck may have a procedural due process right to the testing, the court said, but he did not adequately make that argument in his appeal. Thus, the Eleventh upheld the trial court’s decision to deny access to DNA testing.

Decisions like this are disappointing to south Florida criminal defense lawyers like me. The Eleventh barely had to look into whether Van Poyck’s due process rights were violated, because the U.S. Supreme Court’s precedent in Osborne is binding. That’s true regardless of whether any individual court thinks the Osborne decision was a wise one. For criminal defendants in a similar position, this means it’s vital for Fort Lauderdale criminal defense attorneys to structure appeals in ways that allow appeals judges to decide in their favor on other grounds (when possible).

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July 13, 2011

Florida High Court Reinstates Conviction Based on Disputed Evidence – State v. Hankerson

As a south Florida drug crimes criminal defense lawyer, I know how important the legality of a search can be to a drug case. Because mere possession is a crime in itself and can lead investigators to other crimes, finding a drug in someone’s possession frequently makes or breaks the case. Thus, when a search is illegal, a good defense attorney can often get the resuting evidence thrown out and undermine the case. That was what happened in the Florida Supreme Court’s State v. Hankerson. Anthony Hankerson was charged with possession of cocaine with intent to sell, within 1,000 feet of a school. Hankerson argued that Delray Beach police did not have probable cause to believe he had committed a felony and thus could not legally search him. The trial court disagreed and Hankerson was convicted, but on appeal, the Fourth District Court of Appeal reversed. The Supreme Court’s decision reinstated Hankerson’s conviction.

Hankerson was spotted by an officer driving up to a home, showing something small in his hand to people on the porch, exchanging that thing for money and then leaving, all the while glancing up and down the street. Based on that exchange, he asked colleagues to pull over Hankerson’s car. The officer who performed the traffic stop saw Hankerson bend down when he was first pulled over, then asked him to remove his shoes. When he did, the officer spotted him palming a set of baggies of what turned out to be cocaine. At trial, Hankerson unsuccessfully moved to suppress this evidence and was sentenced to 10 years in prison for possession of cocaine for sale.

He appealed to the Fourth District Court of Appeal, which reversed the conviction. That court declined to consider the state’s argument that the officer performing the traffic stop was merely investigating, saying the state had not raised the issue at trial. The state appealed this to the Florida Supreme Court, citing a conflict with that court’s 1999 decision in Dade County School Board v. Radio Station WQBA. In that case, the court found that appellees need not limit their arguments to arguments that were expressly made in trial court as long as there’s a basis for the arguments in the record. Similarly, the Supreme Court found, the Fourth District could have and should have considered the state’s argument that the traffic stop was merely investigatory. It then went on to find that the trial court had probable cause to search Hankerson based on what the first officer witnessed. Justice Pariente dissented, saying the facts supported reasonable suspicion but not the stricter probable cause.

As a Miami-Dade narcotics criminal defense attorney, I am disappointed by this decision. As the dissent points out, probable cause is a high hurdle that an officer would have to pass in order to get a search warrant. A warrantless search like the one of Hankerson should have an even higher standard, but this decision loosens standards instead. The result will likely be that police officers in Florida feel free to search anyone suspected of drug crimes, even when the suspicions aren’t very well-founded. That goes against many Americans’ ideas about the proper role of police, even if the courts have decided it doesn’t violate the Fourth Amendment. As a Fort Lauderdale drug crimes defense lawyer, I’ll continue to watch search and seizure issues, especially in Florida courts.

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July 5, 2011

Florida Criminal Defense Attorney on Casey Anthony Verdict – State v. Anthony

Today, a jury found Casey Marie Anthony not guilty of murdering her two-year-old daughter, Caylee Anthony. The verdict has already generated a lot of controversy from people who understandably feel that it provided no justice for Caylee Anthony. However, as a south Florida murder criminal defense attorney, I’m less surprised and upset. I have appeared in the media several times to discuss this high-profile case, and I expect to appear several more times to discuss this verdict. In essence, it confirms what I said from the beginning: that prosecutors did not have what it took to convict Casey Anthony beyond a reasonable doubt.

First, a word about what that means. In our legal system, defendants are presumed innocent until proven guilty (or they should be). As a result, the prosecutors bear the burden of convincing a jury that the defendants are not innocent. Jurors in criminal cases are instructed to find people guilty only if they have no reasonable doubts that the person is guilty. In Florida, jurors are told that a reasonable doubt is one that does not leave them completely convinced of the defendant’s guilt. That’s the standard applied to Casey Anthony’s trial.

In my opinion, the prosecution simply didn’t have the evidence to meet that standard. The evidence against Anthony was entirely circumstantial: nothing directly tied her to the child’s death. She certainly lied to the police about issues related to Caylee’s death — and was convicted of it — so she didn’t make a very credible or sympathetic witness. But that’s different from whether she killed her child. By offering alternative explanations for all of the evidence against her, Anthony gave jurors a reason to have reasonable doubts. And as we saw today, those reasonable doubts were enough to keep her out of prison.

As a Miami-Dade criminal defense lawyer, I know a lot of people are unhappy with this verdict. The death of a toddler appeals to people’s emotions, and this verdict has undoubtedly left some people with the impression that no one is being held responsible for a terrible crime. That might even be true, but the trial was not about finding someone responsible: it was about whether Casey Anthony was guilty beyond a reasonable doubt. Using the facts presented to them at the trial — which were certainly more detailed and differently presented from the facts in the media — the jury decided she was not. As a Fort Lauderdale child abuse criminal defense attorney, I commend them for making their decision based on the facts and instructions given to them, rather than emotion — because that’s what keeps our justice system working properly.

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June 29, 2011

Florida Supreme Court Reduces Sentence Under Habitual Felony Offender Law – Mapp v. State

As a Fort Lauderdale theft criminal defense attorney, I was interested to see a Florida Supreme Court ruling on retifying mistakes made in the sentencing of a burglary and theft defendant. In Mapp v. State, Charles Mapp pleaded guilty in Polk County of burglary, theft, grand theft auto and possession of cocaine and drug paraphernalia. The appeal centers not on the charges themselves, however, but on a mistake by the prosecution. Florida has a law designating certain defendants as Habitual Felony Offenders, which enhances the sentences of people accused of felonies who have two previous felonies, and either are still serving time for the previous convictions or committed the new felony within five years of the last conviction. To use this law, prosecutors must provide advance notice that they intend to; they did not do this in Mapp’s case. Rather, they brought it up at a sentencing hearing after the guilty plea, and Mapp was then sentenced as an HFO on some counts, plus restitution for the thefts.

Mapp’s south Florida criminal defense lawyer filed a motion to strike the sentence and restitution, claiming the HFO designation and amount of restitution were both sentencing errors. These were granted, and the prosecution appealed to the Second District Court of Appeal. That court reversed. Mapp’s attorney had moved to strike under Florida Rule of Criminal Procedure 3.800 (b), which pertains to sentencing errors; the Second found that they were errors in the sentencing process. Because Mapp’s lawyer hadn’t brought the objection up under the applicable rule, the appeal court found the issue was not preserved for appeal. It reinstated the sentence, and Mapp appealed to the state Supreme Court.

The high court was a great deal more sympathetic. It started by establishing that “there is no question that Mapp was improperly classified as a habitual felony offender,” since the state had conceded this. Thus, the only issue was whether Mapp’s motion under Rule 3.800 (b) properly preserved his appeal. The Supreme Court found that it did. Under its own previous decision in Jackson v. State (2008), Rule 3.800 (b) applies when the error affects the sanctions ultimately imposed (such as a sentence). Furthermore, the court wrote, breaking specific laws on HFO sentencing constitutes fundamental error, which is covered by the rule under Jackson. Thus, it reinstated the trial court’s order to strike the HFO sentences. However, it agreed with the Second that Rule 3.800 (b) did not apply to the restitution order and upheld that part of the decision.

This decision pleases me, as a Miami burglary criminal defense attorney. The distinction the appeal court drew, between an error in the sentencing process and an error in the sentence itself, is very fine. Indeed, one might say that the appeal court was splitting hairs. That’s unfortunate because the outcome matters a lot to Mapp and others in his position. HFO sentencing doubles the penalties for third-degree felonies like the ones he was facing. Because he was not given notice about the HFO sentencing request, he essentially pleaded guilty thinking he would serve no more than half the time he was given. The Supreme Court’s decision here preserves defendants’ right to fully understand the sentencing they face before they enter a plea.

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June 15, 2011

Colts Player and Former Hurricane Arrested in Fort Myers for Possession of Marijuana

As a south Florida drug possession criminal defense lawyer, I was disappointed to read about another NFL player arrested in our state for offseason misbehavior. Javarris James, a running back for the Indianapolis Colts, was arrested in Fort Myers for possession of 0.4 gram of marijuana. James, an Immokalee native, is known in Florida as a player for the Miami Hurricanes and a star at Immokalee High School. He is also the cousin of Colts and Hurricanes alum Edgerrin James. According to the Naples Daily News, the younger James, 23, was released an hour after his booking on a bond of $1,000. He is scheduled to appear in court June 28 to face the misdemeanor charge.

The Naples paper reported that James was originally pulled over by Fort Myers police “over concerns about the level of tint in his windows.” When they opened the car, police said, they smelled marijuana and conducted a search. The police report said they eventually found pieces of marijuana on the floor of the car between the center console and the passenger seat. If convicted of marijuana possession less than 20 grams, he faces up to a year in jail and a fine of up to $1,000. Like all NFL players, James is currently locked out of offseason training or personnel moves, thanks to a dispute between team owners and their players. According to the newspaper, some Colts players are meeting for private workouts — which might make drug use inadvisable — but it wasn’t clear whether James was among them.

As a Miami-Dade drug crimes defense attorney, I’d like to point out that the crime James is accused of is very, very minor. The marijuana he’s accused of possessing is 0.4 grams, which is about 0.014 ounces. To find that little of the drug, the police must have had to be very thorough in their search. In fact, the tiny amount of the drug, and the minor window-tinting “concerns” that triggered the traffic stop, make me wonder whether police were entirely honest when they said they searched the car because they smelled marijuana. Sadly, some police officers still react with suspicion when they see a young African American man driving an expensive car. As a Fort Lauderdale drug crimes defense lawyer, I don’t doubt that James can afford an experienced attorney, and I hope that lawyer keeps these issues in mind when responding to the charges.

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June 8, 2011

Illinois Seeks to Extradite Man Convicted of Vehicular Homicide of British Businessmen

As a Fort Lauderdale vehicular manslaughter criminal defense attorney, I was interested to read that the state of Illinois is seeking to extradite Ryan LeVin after his conviction here in Florida. LeVin, 36, is the wealthy Illinois man who pleaded guilty last week to killing two pedestrians in Broward County. LeVin was sentenced to just two years of house arrest after he agreed to pay financial compensation to the families of the victims. However, the Chicago Tribune reported June 6, the state of Illinois is seeking LeVin’s return to that state because he allegedly violated parole stemming from an earlier crash by traveling to Florida for trial without permission.

LeVin’s Florida crash took place in 2009. At first, he told authorities that a friend was driving when his Porsche jumped a curb in Fort Lauderdale and hit Craig Elford, 39 and Kenneth Watkinson, 48. The Porsche left the scene, and LeVin allegedly switched cars with a friend who later abandoned the Porsche on an entrance ramp. LeVin later admitted that he had been drag-racing and accepted responsibility for the deaths. In court, he would have faced up to 45 years in prison, but the Tribune said he had settled a civil case with Elford and Watkinson’s families, who asked the court for leniency.

At the time of the Florida crash, LeVin was on parole for a 2006 Chicago crash that injured a policeman, led a high-speed chase on an expressway and led to the discovery of cocaine in his car. Following the Florida crash, LeVin’s parole was revoked and he spent six months in jail. He was again on parole when he went to Florida to face charges there, but Illinois authorities said he didn’t have permission to travel. He would likely receive less than six months in jail, the Tribune said, before serving the house arrest at his parents’ condo by the ocean.

This case has gotten a lot of coverage as an example of “checkbook justice” in Florida. But as a south Florida manslaughter criminal defense lawyer, I’d like to discuss the issue of extradition to another state. Unlike international extradition, extradition between U.S. states is generally not refused. But that doesn’t mean someone in LeVin’s position has no defense. He has the right to contest the extradition, including the right to ensure that he’s being validly charged with a crime, that the paperwork is correct and that he is the person Illinois is seeking. In this case, the biggest issue might be whether LeVin did indeed violate his parole by going to Florida to answer the charges, which Illinois authorities must have been aware of. As a Miami criminal defense attorney, I handle interstate and international extradition defense whenever my clients need it, so I know that fighting extradition really can delay or even end a prosecution.

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June 1, 2011

Police Shootings and Alleged Civil Rights Violations Mar Urban Beach Weekend

As a south Florida assault criminal defense lawyer, I was interested to read about the police shootings and controversy surrounding Urban Beach Weekend in Miami Beach. As the Miami Herald reported May 30, two separate officer-involved shootings took place very early on that day, leaving one suspect dead and three officers and four bystanders wounded. None of the people involved were named in the Herald story, but the three officers were expected to recover. The driver in the second incident has been arrested on unspecified charges. Witnesses also accused police officers, who came from several south Florida departments to handle the crowd, of grabbing and destroying cell phones being used to videotape the incidents.

In the first incident, a driver identified as 22-year-old Raymond Herisse struck a police officer with his car just before 4 a.m. Instead of stopping, Herisse sped away; Miami Beach police chief Carlos Noriega said Herisse was intentionally trying to hit officers, hitting parked cars and forcing officers and pedestrians to jump out of the way. Some reports said the driver was firing from the car, but officers found no gun when they opened the car, and reports say no one else was inside the car. A total of 12 officers did shoot more than 100 bullets at the car, including shots fired from a semicircle of officers after it stopped, which eventually killed Herisse. All seven of the wounded officers and bystanders were hurt during this incident, and Noriega acknowledged that the police bullets may have been responsible. A witness told reporters that a police bullet hit her friend. A witness captured some of the incident from a roof:

In the second incident, a driver violated the police roadblocks set up after the first shooting and drove toward several officers who were on foot. The officers fired into the car, which crashed into a police car parked at the side of the road. No one was injured, fortunately. However, a witness to the first incident told CBS 12 that police grabbed and destroyed his phone after seeing him filming the first incident. Narces Benoit of Palm Beach County said he was taping the first shooting when an officer ran up to him and wordlessly grabbed his head and smashed him to the ground. He said the officer stepped on his back, threw the phone on the ground and stepped on it, “cussing me out the whole time.” Benoit said police took several other phones with cameras from witnesses on the street, and that he plans to file a complaint.

From the facts presented in these articles, it’s difficult to say whether police acted appropriately with the original driver. However, as a Miami-Dade resisting arrest criminal defense attorney, I agree with the ACLU that there should be an independent investigation into this and any other officer-involved shooting. Urban Beach Weekend has a troubled history, though it’s also had calm years, and it’s not hard to imagine officers overreacting to perceived threats. That seems especially likely in the second incident, when officers would have been still upset from the last one. Even a driver who had accidentally gotten into the “secured” area could be perceived as a threat by officers on foot who were tired and on alert. However, the officers’ choice to seize and destroy the camera phones of witnesses seems like a pretty clear violation of their rights to speech and property. As a Fort Lauderdale disorderly conduct criminal defense lawyer, I would caution people involved in this incident to get experienced legal help immediately, because officers may find bogus charges to file against them if they feel it helps cover for official misconduct.

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May 25, 2011

Chicago Bears Player Arrested for Theft and Assault After South Beach Nightclub Fight

As a Miami theft criminal defense attorney, I was interested to see theft charges against a high-profile defendant — a football player most recently with the Chicago Bears. According to a May 23 article from NBC Miami, Garrett Wolfe, who will be a free agent when the NFL lockout ends, was arrested early the morning before for refusing to pay a bar tab and fighting officers who responded. Wolfe, a 26-year-old running back, was drinking at the Cameo nightclub in Miami Beach before things got out of hand. He is facing charges of retail theft, resisting a police officer with violence, disorderly conduct and assault on a police officer.

Reports said Wolfe was kicked out of the bar early Sunday after refusing to pay a bill for three bottles of champagne, which totaled nearly $1,600. After he started arguing with the staff, bouncers kicked him out and police responded. When the police asked Wolfe to settle his bill, the police report says he responded “F--- you, I’m not paying for s---, I run s--- here!” That was followed by a physical scuffle in which officers said they were forced to hit Wolfe in the face and knock him onto the ground. Injuries to his face are visible in his booking photo. Two officers said they also suffered minor injuries. He was eventually arrested and hit with the four charges, and later released on a bond of $11,500. The incident may hurt Wolfe’s future as a free agent, which was already in doubt because of the lockout.

The lockout angle will interest many football fans, who have noticed that Wolfe would already be in training under normal circumstances. But as a Fort Lauderdale assault criminal defense lawyer, I’d like to discuss the specific charges Wolfe faces. As I’ve written here before, “resisting an officer” is frequently charged by police officers who don’t happen to like the defendant’s attitude, personality or looks. Disorderly conduct is another law that can be used in that way. Frequently, an experienced criminal attorney can mount a strong defense against both. In this case, Wolfe’s case is complicated by the retail theft charge, which presumably stems from the bill for the champagne, and the charge of assault on a police officer. Depending on the circumstances, a south Florida resisting arrest defense attorney could make a deal allowing Wolfe to plead to those charges and pay for the champagne in exchange for dropping the other charges.

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May 18, 2011

Miami-Dade Prosecutors Announce DUI Diversion Program for First-Time Offenders

A policy shift by the Miami-Dade State’s Attorney’s office has the potential to radically change the way south Florida DUI defense lawyers like me do our jobs. As NBC Miami reported May 10, the prosecutors have announced that first drunk driving offenders in the county will no longer be prosecuted for drunk driving. Instead, those offenders will have the option to choose a program in which they are convicted of reckless driving and sentenced to a fine, a year of DUI classes, an ignition interlock device and possible community service. Failure to complete this probationary period would likely bring the DUI charge back. The program will be offered only to first offenders who did not get into an accident, had no children in the car with them and have no history of reckless driving.

The program is similar to pretrial diversion programs offered in other jurisdictions for offenses like drug possession or passing bad checks. In essence, it gives the defendant a chance to avoid a serious conviction in exchange for successfully completing a parole period designed to discourage and change the behaviors that got him or her into trouble in the first place. Criminal defense attorneys told the media they were cautiously optimistic about the program’s ability to address the alcohol problems underlying DUIs. A MADD spokesperson said the program sent the wrong message but may help prevent drivers from getting off scot-free. The State’s Attorney’s office echoed that, saying offenders can currently have their cases dismissed if witnesses don’t show up. The office also said the program would give defendants a chance to turn their lives around.

As a Miami drunk driving criminal defense attorney, I’m eager for more information on this program. At first glance, this looks like a good thing for first DUI offenders. Rather than face a criminal conviction for DUI, which carries loss of your driver’s license and skyrocketing insurance rates, this program would offer defendants a chance to plead to reckless driving instead. Reckless driving is not free of consequences — it puts four points on your license and carries optional jail time — but it’s generally better for the defendant than intoxicated driving. That’s especially important because many first drunk driving charges stem from foolish mistakes, not habitual alcoholism, and this policy could prevent them from facing very harsh penalties while giving them a taste of what could happen if they aren’t more careful. And of course, defendants retain the option of not taking the plea deal and defending the DUI charge in court. As a Fort Lauderdale intoxicated driving criminal defense lawyer, I look forward to hearing more from the State’s Attorney’s office.

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May 11, 2011

Surveillance Video and New Information on Accuser Could Change FIU Rape Case

As a Miami-Dade sex crimes criminal defense lawyer, I know cases of rape and sexual assault can frequently pit one person’s word — and credibility — against another’s. So I was very interested to see a May 8 article in the Miami Herald suggesting that the truth in the Garrett Wittels rape case may be more complicated than it originally seemed. Wittels is a talented hitter for Florida International University’s baseball team, and the most high-profile of three young men accused of raping two girls of 17 at a resort in the Bahamas. The girls’ names are being withheld because of their age, and that means information on their families is limited. But according to the Herald, newly released surveillance video seems to contradict the stories the girls gave the police. Perhaps even more damaging is the news that the father of one girl has been sued for an alleged plan to have a woman falsify a rape allegation and a racially charged fight at a pro sporting event.

Jonathan Oberti and Robert Rothschild are accused along with Wittels. The three young men were in the Bahamas to celebrate the birthday of another friend at a resort and casino. There, they met the two accusers, both 17. Their stories about the night differ, but both sides agree that the girls drank alcohol before meeting the young men (minus Oberti) and joining them at the casino. They also agree that there was sex after the girls followed the accused to their hotel room and met up with Oberti, although the accused say the sex was consensual. The video contradicts the girls’ statement that they left the bar themselves and were followed, showing one leaving hand in hand with Wittels. It also shows a lot of physical flirting and kissing in the casino, which the Herald said the girls frequently initiated.

The allegations against one girl’s father have to do with a sports organization not named here to avoid identifying the daughter. A letter from the organization’s law firm accused the father of planning to hire an actress to claim she was sexually assaulted at an event put on by the sports organization. It also accused him of planning to stage a physical fight in the stands to make it look like the organization was hostile to minorities. Later, the same organization sued the father for setting up tents outside two sporting venues, where he planned to make “Girls Gone Nutz” videos in the style of “Girls Gone Wild.” The organization received a restraining order preventing the father from representing himself as working for or with it.

Of course, the father’s alleged or actual misconduct does not affect whether the girls’ allegations are true. But if I were the south Florida sex crimes defense attorney representing the accused young men, I’d investigate whether there was more than a coincidental relationship between the allegations against the father and the current case. It’s disturbing to see that the father accused of planning to make false allegations of rape for financial gain — particularly since there are apparent inconsistencies in the girls’ story. False rape charges can ruin reputations and careers even if the accused is never convicted. A conviction adds prison time and possible sex offender registration requirements after release. As a Fort Lauderdale sex crimes defense lawyer, I vigorously fight false allegations, using the facts as well as back stories explaining the accuser’s possible ulterior motives.

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May 4, 2011

Family Members Convicted for Trying to Stop Tasering of Man With Heart Problem

As a Miami resisting arrest criminal defense attorney, I know that "resisting arrest" is often misused by police officers to punish arrestees they don't happen to like. But I was still surprised to read that a Kendall woman and her adult son were convicted of resisting an officer without violence because they tried to stop police from Tasering another adult son with a heart condition. Ana Ramirez and Hernando Yunis were convicted last week by a Miami jury on charges stemming from their attempt to pry Taser prongs off of Christian Pagan. Pagan, 25, has Down syndrome and an unspecified heart condition, and spent several weeks in the hospital after the incident.

Ramirez is the mother of both Pagan and Yunis. She had originally called 911 to stop a violent outburst by Pagan, New Times Miami reported April 27, but specifically asked the officers not to use the Taser. However, Pagan reportedly charged one of the responding officers outside the home, and the officer used the Taser, saying she feared for her safety. That's when Yunis and Ramirez tried to pry the prongs of the stun gun off of their brother and son. For their trouble, they were arrested for "resisting arrest without violence," the less serious of Florida's two resisting arrest crimes. Yunis and Ramirez will not serve jail time and the conviction will not be on their records, but each must pay $400 in court costs, the New Times said.

To me, as a Fort Lauderdale criminal defense attorney, this story underscores how arbitrarily police use charges for "resisting an officer." Yunis and Ramirez were clearly trying to protect Pagan, and they did it in a way that does not appear to have put the officer in any danger. Indeed, the most serious danger in the encounter appears to be the danger the officer knowingly put Pagan in by Tasering him, despite having been warned about his heart problem. In general, resisting an officer without violence is a useful charge for police officers who feel that someone has been disrespectful or uncooperative. That means it's very easy for police officers to misuse on people they just happen not to like. An experienced south Florida obstruction of justice criminal defense lawyer can fight for clients in this position, forcing police officers to specify in court exactly what behavior they felt rose to the level of criminal so jurors can decide for themselves.

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April 27, 2011

Wife of Dolphins Player Brandon Marshall Jailed for Allegedly Stabbing Him in the Gut

As a Miami-Dade domestic violence criminal defense lawyer, I hear from a lot of male defendants who feel they were unfairly discriminated against because of their gender. When both parties to a domestic dispute present different stories to the police and there’s no other witness, officers who can’t or don’t want to do more investigation will sometimes arrest the man just because there’s a stereotype that women don’t commit domestic violence. A high-profile arrest that took place Friday evening here in South Florida turns that stereotype on its head. The wife of Brandon Marshall, a receiver for the Miami Dolphins, was arrested that night and accused of stabbing him with a kitchen knife. Michi Nogami-Marshall, 26, is charged with aggravated battery with a deadly weapon. Brandon Marshall is expected to recover after treatment for a stab wound to the abdomen.

Around 4:40 p.m. Friday, Nogami-Marshall called 911 to request an ambulance, but without giving any details. Responders found Marshall with a stab wound to the abdomen. He initially told police he’d slipped and fallen on broken pieces of a glass vase. However, the officers didn’t believe the story because there was no blood in the area. After she was arrested and read her rights, Nogami-Marshall said she had acted in self-defense. Marshall spent the night in a hospital trauma unit and Nogami-Marshall was taken to jail. The couple has had one previous run-in with police, also for domestic violence, from 2009. Then engaged to be married, they were spotted outside Marshall’s condo in Atlanta punching and kicking one another. They were charged with disorderly conduct, but those charges were eventually dismissed. A former girlfriend of Marshall’s, Rasheedah Watley, has told ESPN he choked and stabbed her, and Marshall completed anger management classes in Denver after a domestic violence arrest there.

I suspect there’s more to the story than the media has been able to report. Marshall has acknowledged his trouble controlling his temper in the past, and the Atlanta arrest suggests that both spouses have a history of physical fighting. For Nogami-Marshall’s Fort Lauderdale domestic violence defense attorney, the key question will be whether she was acting in self-defense, as she claimed, or attacking her husband. Unfortunately, it looks like there are no other witnesses to the dispute. This is a common problem in domestic violence cases, because most incidents leading to domestic violence arrests happen behind closed doors. That means police officers and prosecutors have to use their judgment on whose story they think is more believable — or which person they think is most credible. As a South Florida assault criminal defense lawyer, I defend clients aggressively from unfair gender stereotypes or other bad assumptions by police, forcing them to use the evidence and nothing else to make their case in a court of law.

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April 20, 2011

Police May Not Use Drug-Sniffing Dogs to Randomly Check Homes, High Court Rules

As a south Florida drug crimes defense attorney, I know police can overstep their authority when it comes to investigating drugs and narcotics. So I was pleased to read about a Florida Supreme Court ruling outlawing a police practice that randomly targets homes for searches. As the Miami Herald reported April 15, the court ruled 5-2 that police officers may not use drug-sniffing dogs to find marijuana “grow houses,” which are essentially indoor gardens carved out of residential homes. The ruling means prosecutors cannot use the evidence found in this manner against Joelis Jardines, a 38-year-old Miami-Dade man who was prosecuted for marijuana trafficking and grand theft. The Florida Attorney General’s office plans to appeal to the U.S. Supreme Court.

Jardines came to the police’s attention after an anonymous call to the Miami-Dade Crime Stoppers hotline. A month later, the police took a trained dog to sniff around the front door of his home. When the dog indicated that it could smell marijuana, the police obtained a search warrant, investigated and ultimately arrested Jardines. However, he successfully argued at trial that the use of the police dog violated his constitutional right to be secure in his home. The court’s majority said searching individual residences is distinct from using drug-sniffing dogs in public places like airports. Justice James Perry wrote that the spectacle of a large-scale police search causes homeowners in Jardines’s position “humiliation and embarrassment.” Two justices dissented, arguing that there is no expectation of privacy on a home’s doorstep.

The expectation of privacy at issue here comes from the Fourth Amendment of the Constitution, so it’s a very important basic concept of American law. That’s why, as a Miami-Dade narcotics criminal defense lawyer, I’m so pleased that the Florida Supreme Court ruled this way. The home is one of the places where the law agrees that defendants have a reasonable expectation of privacy; a warrantless search of the home would be a violation of that privacy and not permitted under the law. That’s the argument Jardines successfully made in this case. The ruling doesn’t take away police powers to search homes, of course — but it does take away their ability to do so without a warrant. Without the dogs, officers would have had to get a warrant based on the Crime Stoppers tip and perhaps detective work that would have taken longer. As a Fort Lauderdale marijuana criminal defense attorney, I think warrants and other checks on police power are an important way to protect our privacy.

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April 13, 2011

Mother of Miami Heat Star LeBron James Arrested for Battery and Disorderly Conduct

A local incident that’s made the national news caught my eye as a Miami battery criminal defense attorney. As CBS4 reported April 7, the mother of Miami Heat Player LeBron James was arrested early on April 5 for alleged battery and disorderly intoxication outside the Fontainebleau Hotel. Gloria James is accused of slapping a valet at the hotel after he could not immediately produce the keys to her car. Reports said she was very intoxicated and fell down directly after the slap, then was taken into custody. A video shows her arguing with police officers after her arrest. The valet, Sorel Rockefeller, said he intends to sue Gloria James.

According to the New Times Miami, Gloria James had been partying at a club on the night of April 4. She returned to the hotel, where she’d left her car, and asked the valet to retrieve it, but reportedly didn’t claim it for 30 minutes. Eventually, Rockefeller or one of his colleagues left the keys with a cashier. When James returned to pick up the car, she got angry and asked “where are my [expletive] keys,” slapped Rockefeller in the face and fell to the ground. Responding police officers said that when they arrived, she was in the passenger seat of the vehicle, with another woman in the driver’s seat. James smelled strongly of alcohol and her eyes were bloodshot, officers said. She was also reportedly uncooperative with officers, shouting at them that “I don’t trust your kind.” She was released with a promise to appear, and LeBron James told the media that he’s helping to handle it. Gloria James has a 2006 DUI from Ohio, but no other prior charges were reported.

As a Fort Lauderdale assault criminal defense lawyer, I’m pleased that this family has the money to properly defend Gloria James from the criminal charges. A slap may not sound too harmful, but any unwanted touching, no matter how slight, is enough to support a charge of simple battery in Florida. In fact, defendants can face a related assault charge merely for threatening another person with battery, even if they don’t go through with the threat. If the reports are right, that doesn’t look like an issue in this case, but a battery charge is still a misdemeanor crime — and no one wants to see their mother convicted of a crime. Disorderly intoxication is also a misdemeanor, charged against people accused of causing a disturbance while drunk in public. An experienced south Florida criminal defense attorney may be able to defend the charges, or secure a favorable plea agreement, but it’s unlikely that James could do that on her own — especially with the public watching to see if she gets special treatment.

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April 8, 2011

Criminal Defense Attorney David Seltzer Quoted in Teen DUI Article

I'm pleased to announce that I've been quoted in an online article about drunk driving and teenagers. The article on InsuranceQuotes.com runs down the many reasons teenagers (and everyone else) shouldn't drink and drive, including the risk of death and serious injury, the financial costs, the legal consequences and the toll they can take on teenagers' lives. Of course, I was quoted on the legal consequences for teenagers accused of driving drunk in Florida, who are treated exactly like adult DUIs even though they may be under 18. If you've been accused of driving under the influence, or your teen has, don't wait to contact Seltzer Law, P.A. for a free, confidential case evaluation.

April 6, 2011

Woman Charged with DUI After Leaving Coconut Grove Jogger in Critical Condition

A news story on a suspected drunk driving accident caught my eye as a Miami-Dade intoxicated driving criminal defense attorney. According to an April 4 article from the Miami Herald, 32-year-old Corina Gonzalez was arrested last weekend after she allegedly caused a crash that put an 18-year-old in the hospital. Brian Beaubrun was hit by Gonzalez’s Jeep at around 12:30 a.m. Sunday while he was jogging. He was originally reported as dead, but the article said he was in critical condition as of Monday at the Ryder Trauma Center. It wasn’t clear whether Beaubrun was a high school student or a graduate.

The accident was witnessed by Miami Herald employee Alex Fuentes, director of interactive products. Fuentes was a passenger in a friend’s car when he witnessed the accident at the intersection of Virginia Street and West Trade Avenue in Coconut Grove. He and his friend saw the Jeep hit something that flew into the air and were shocked to realize it was a person. According to a police report, Gonzalez was heading north on Virginia Street and had just crossed the intersection with West Trade when she drifted or swerved to the right and hit a parked car. Her Jeep bounced off it and hit Beaubrun, who was jogging on the side of the road. Fuentes and his friend called 911 and waited for an ambulance Gonzalez is facing charges of DUI causing serious bodily injury. No hearing or trial dates were reported.

As a south Florida drunk driving criminal defense lawyer, I would strongly advise Gonzalez or anyone else in her position to get help from an experienced DUI lawyer right away. DUI causing serious bodily injury is a felony, which means Gonzalez is likely to face prison time. This is assuming no further charges are filed, which is still possible at this early stage. It also comes with all of the same penalties of any driving under the influence charge in Florida, which includes a driver’s license suspension, huge fines and fees, DUI school and more. In order to maximize your chances of staying out of prison on this charge and minimize the effects on your job, your family and your life, it’s essential to speak to a Broward County DUI criminal defense attorney as soon as possible.

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March 23, 2011

Fort Lauderdale Man Accused of DUI Manslaughter of Miami Heat Cheerleader

As a Miami-Dade drunk driving criminal defense lawyer, I was interested to see a piece about the prosecution of a man accused of a high-profile DUI death. As the Fort Lauderdale Sun-Sentinel reported March 18, Mario Careaga of Fort Lauderdale is accused of causing the death of Nancy Guillermina Lopez-Ruiz, a 22-year-old who had just joined the Miami Heat dance squad. Lopez-Ruiz was stopped by the side of the road on her motorcycle when Careaga plowed into her, killing her at the scene. Careaga is facing charges including DUI manslaughter, DUI property damage and careless driving.

Careaga and a friend were at the Galleria Mall before the September 2010 crash. Surveillance cameras at two stores show the two men being served at bars about six times, police say. Then, they apparently got into Careaga’s car and drove west on Sunrise Boulevard, where Lopez-Ruiz was stopped by the side of the road, in an area called a “gore” that authorities said was not intended for vehicles. The crash threw her 137 feet, killing her at the scene. Ninety minutes after the crash, two tests measured Careaga’s blood-alcohol level at 0.23 and 0.24 — about three times the legal limit. Careaga turned himself in on formal charges March 17 and was released the next morning on bail. His Fort Lauderdale DUI criminal defense lawyer said it was “a horrible, tragic accident.”

I’m pleased to see Careaga has a defense attorney, because the charges he faces are very serious. It’s difficult to say from the information included in the article, but from that quote, it looks like Careaga and his lawyer may be planning to defend the charges rather than make a plea agreement. If Lopez-Ruiz was stopped in an area not intended for vehicles, as the police report said, Careaga may be able to argue that he didn’t reasonably expect anyone to be there. By contrast, if he makes a plea bargain, he will likely face less time than the maximum 15 years in prison carried by a Florida DUI manslaughter charge. As a south Florida intoxicated driving criminal defense attorney, I know that could mean a plea to a lesser or different charge that still carries some time, including vehicular manslaughter, felony DUI and others.

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March 16, 2011

Miami Beach Police Officer Serving Time for Pot Cleared in 2009 Shooting of Tourist

Back in 2009, a police-involved shooting in Miami Beach caught my eye as a Miami-Dade criminal defense attorney. Husien Shehada of the Washington, DC area was shot late at night on Washington Avenue by Miami Beach officers who said they thought he was pulling a weapon; investigation later turned up nothing but a beer bottle in the waistband of his pants. Now, as the Miami New Times Riptide 2.0 blog reported March 9, an investigation has cleared the officer who pulled the trigger, Adam Tavss. Prosecutors say Tavss was justified in shooting because Shehada didn’t obey instructions to raise his hands. Shehada’s brother, Samer Shehada, was present at the time of the shooting and says his brother made no threatening moves and didn’t touch the bottle.

Samer Shehada said he and his brother had a fight with their girlfriends, so they went out to buy some cigarettes. A bouncer on the street called police to report that the men were armed, and when police found them, they yelled at them to put their hands up. The prosecutors’ report says another officer saw Husien Shehada reaching for the beer bottle in his pants. Based on that, he later said Tavss could have believed Shehada was reaching for a weapon. A surveillance video showing the Shehadas from behind does not show either making sudden or aggressive moves, and no other officers at the scene reacted this way. The family is planning a lawsuit against the police department.

Tavss is no longer with the Miami Beach Police Department, but not because of Shehada’s shooting. Four days after Shehada’s shooting and just hours after passing a related psychiatric evaluation, Tavss also shot and killed a homeless man named Lawrence McCoy Jr., saying McCoy had a weapon. No weapon was found. After that shooting, Tavss tested positive for marijuana, which led to his resignation from the police force. Months later, Tavss was found running a marijuana grow house in his apartment. He is currently serving a two-year sentence of house arrest and is barred from working as a police officer.

As a south Florida assault criminal defense lawyer, I suspect that a civilian accused of the same behavior would be unlikely to get the same treatment. Self-defense is certainly a defense against charges of armed assault and battery (likely a felony), but the courts generally need defendants to demonstrate a reasonable belief that their lives were in danger. In this case, the Shehada family and others dispute the reasonableness of Tavss’s belief that he was in danger. (However, it’s important to realize that Tavss didn’t end up before a jury, as a civilian likely would — his actions were evaluated by the Miami-Dade State’s Attorney’s office.) To get this kind of outcome in a case involving felony charges, you should mount the strongest defense they can — and that typically means hiring a Fort Lauderdale battery criminal defense attorney as early as possible in the case.

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March 9, 2011

Miami Woman Charged With Resisting Arrest Claims Police Pushed and Threw Her

As a Miami-Dade resisting arrest criminal defense attorney, I’m well aware that the crime of “resisting an officer” in Florida is sometimes misused by police officers who simply don’t like the person arrested. So I was interested to see a March 2 article from WSVN-TV about a woman who claims officers roughed her up, including pushing her to the ground while she was already handcuffed, before charging her with resisting arrest, disorderly conduct and battery on a police officer. Andrea Castillo says she was wrongly jailed and subjected to excessive force after criticizing officers verbally on her way out of a concert Feb. 20. Video captured of part of the confrontation appears to show her being pushed into a metal railing, and Miami police say they’re investigating the incident.

Castillo had been to a concert at Bayfront Park with her husband and some friends. As they left, she was separated from the others and encountered a police officer she felt was rude. She says she asked “Why are you talking to us like that?” and the officer cursed at her. The next thing she knew, she said, she was pushed into a railing, then pulled back by her arm. When she spoke again, she says, the officer handcuffed her and began walking her away, but then pushed her onto the ground while handcuffed. It wasn’t clear from the video how many officers were involved, and the department declined to comment. She was slightly injured, but says she doesn’t want to sue the department — she just wants the charges against her dropped.

As a Fort Lauderdale resisting an officer defense lawyer, I know there’s a reasonable chance that Castillo is telling the truth about not having committed any real crimes. Unfortunately, the Miami-Dade Police Department has been accused of excessive force in the recent past — in fact, a similar incident was caught on tape on Halloween, when officers were accused of beating partygoers in Coconut Grove for no apparent reason. Al Sharpton has also recently called for an investigation into officer-involved shootings of African American men. Resisting an officer is a real crime in Florida, but unfortunately, it’s very vaguely defined. This allows officers who just don’t like being questioned to use it in situations where no real crime was committed — in essence, to abuse their power. An experienced south Florida resisting arrest defense attorney may be necessary to clear the defendant’s name and keep him or her out of jail on trumped-up charges.

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March 2, 2011

Former Gators Safety Begins Serving Jail Sentence for Assault and Probation Violation

As a south Florida probation violation lawyer, I was interested to see a probation violation that made the news because of a high-profile defendant. The Orlando Sentinel reported Feb. 22 that Jamar Hornsby, a former redshirt freshman safety for the University of Florida, reported to jail the day before to serve 90 days for violating his probation. The underlying charge was for four misdemeanor counts of unauthorized use of a credit card. Hornsby was arrested for that charge in May of 2008. He was also released from the Gators, and returned to his native Mississippi. There, he got into trouble again in 2009 when he was charged with misdemeanor assault Starkville, Miss. That was the basis for the probation violation charge that landed him in jail.

Hornsby’s original legal trouble stemmed from an October 2007 motorcycle accident that killed his teammate, Michael Guilford, and another student named Ashley Slonina. Six months after their deaths, Hornsby was accused of using Slonina’s credit card about 70 times. He pleaded guilty to the misdemeanor charges and was sentenced to probation, restitution and court costs. After leaving Florida, he played for a community college and signed a letter of intent with Ole Miss, but was released after his arrest for assault, for allegedly attacking a man who rear-ended his car in a McDonald’s drive-through. He will serve 90 days in Alachua County Jail in Gainesville for the probation violation. After finishing his jail sentence, he will need to enroll at Mississippi’s Delta State quickly to make a May 31 deadline to play for that school.

As a Miami assault criminal defense attorney, I hope the high profile of this case reminds probationers how important it is to stay out of trouble. When you’re on probation, almost any law-breaking more serious than a parking ticket can land you back in jail. If that happens, your jail or prison sentence is determined by the sentence for the original crime — not whatever you’re accused of doing to violate probation. That means you can face long sentences for relatively minor infractions. To make matters worse, people on probation have fewer rights than other people, which means police can do things like search you at any time without permission. And as Hornsby’s case shows, you can also suffer non-criminal penalties like losing a job or a job opportunity. That’s why your best choice is to stay out of trouble — and, if you get in trouble, why you should hire a Fort Lauderdale probation violation attorney as soon as possible.

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February 23, 2011

Red Light Cameras Losing Popularity in South Florida as Broward Encounters Problems

On this blog, I wrote a few weeks ago about the problems Palm Beach County has had collecting on its red light camera tickets. Courts in that county have ruled that the photos and video generated by their system are not sufficient to show that a crime was actually committed. As a result, a majority of tickets have been dismissed in court, and south Florida traffic ticket defense attorneys say the system may not be sustainable. Now, the South Florida Sun-Sentinel reported Feb. 19, Broward County officials are reporting similar problems. The cost of defending the tickets in court, and the dismissal of some tickets, has eaten into the revenue municipalities were expecting, and some representatives in the state Legislature have proposed ending authorization for any red light camera programs at all.

Red light cameras were sold to municipalities and voters as a revenue generator, as well as a way to stop the dangerous practice of running red lights. But according to the article, some cities are actually spending more money defending red light camera tickets than they are taking in in fines. The costs come in part from the time of city attorneys and law enforcement officers who must appear in court. Tickets are also being dismissed in court because the evidence automatically generated by the cameras is considered unreliable, and therefore not admissible, by some judges. Tickets for turning right on red without stopping, for example, are reportedly very difficult to prove. Courts have also asked for evidence showing that the car hadn’t already entered the intersection before the light turned red. As a result, at least three municipalities are waiting on installing their own camera systems, although others are going forward with theirs.

As a Miami red light camera lawyer, I’m pleased to see that cities are rethinking whether red light cameras are a good idea. This article only scratches the surface of the evidence problems the cameras can create. Without the human judgment of a human law enforcement officer, cameras miss a lot. For example, a still photo can’t reliably capture whether the vehicle entered the intersection before the light turned red; a video might, if the camera were pointed in the right direction. In addition, as I wrote last month, safety studies have found that red light cameras can actually increase the number of rear-end accidents, by giving drivers an incentive to stop short for yellow lights. An experienced Fort Lauderdale traffic tickets attorney like me may be able to find other problems with the evidence — and without evidence, the city has no case. If the revenue doesn’t add up and neither do the safety claims, the state should consider whether red light cameras are really in the public’s best interests.

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February 16, 2011

Former Miami Dolphin Arrested for Second DUI After Causing Minor Accident

A DUI for a local celebrity caught my eye as a south Florida drunk driving criminal defense attorney. As the Miami Herald reported Feb. 14, former Dolphins player Bob Kuechenberg, 63, was arrested Saturday for allegedly causing an accident while under the influence of alcohol. Kuechenberg, of Fort Lauderdale, is accused of swerving into another driver’s car on Interstate 95, causing a sideswipe crash with property damage but no injuries. Responding troopers measured Kuechenberg’s blood-alcohol content at 0.127 and 0.122, both well above the 0.08 legal limit. He is charged with a second-offense DUI, DUI with property damage and improper passing. His previous DUI conviction came from a no-contest plea in 1994. In 1993, Kuechenberg pleaded guilty to reckless driving after being charged with DUI. Neither incident led to injuries.

Kuechenberg, known as “Kooch,” was a lineman for the Dolphins who started four Super Bowls and was part of two championship teams. The crash leading to his arrest happened at about 9:30 p.m. on Feb. 12. According to the Herald, Kuechenberg was just south of Commercial Boulevard on I-95 when he swerved into another lane and hit the right side of a car driven by Jose Median. Kuechenberg did not stop to acknowledge the accident, so Median followed him and flashed his lights to get him to pull over. Kuechenberg’s Volvo apparently had major damage to its front left side. Police responding noticed that Kuechenberg had a red face and watery, bloodshot eyes, smelled of alcohol and slurred his speech. He agreed to perform field sobriety tests but couldn’t keep his balance. He was arrested and eventually freed on bail the next night.

As a Miami-Dade DUI criminal defense lawyer, I hope Kuechenberg has an attorney. Everyone charged with DUI should have legal help, but it’s especially important for celebrities, because public interest unfortunately ensures that their cases will be watched in the media. That’s bad news when it puts pressure on prosecutors to prove that they’re not going easy on the famous person, because they often take it too far the other way. The standard penalties for a second drunk driving conviction are already very serious; Kuechenberg is facing a license suspension of six months to a year, probation for the same time range, possible jail time, an ignition interlock device, impoundment of his car and DUI school. Prosecutors interested in “making an example” of him might push for the upper range of penalties – but that’s not usual in a case where the prior DUI was 17 years ago. As a Fort Lauderdale intoxicated driving criminal defense attorney, I hope Kuechenberg has an experienced advocate to remind the court of this, if necessary.

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February 2, 2011

Plantation Teenager Arrested for Sharing Marijuana Infused Cookies With Classmates

As a Fort Lauderdale drugs defense attorney, I was interested to read about the arrest of a South Plantation High School student for bringing drugs to school. The South Florida Sun-Sentinel reported that the teenager was arrested Jan. 28 after a cookie he gave to another students made that student sick. He is not being named because of his age, and neither are the two students to whom he gave the adulterated cookies. However, he is being criminally charged with possession of marijuana under 20 grams and delivery of a controlled substance within 1,000 feet of a school. He and the other two students also face a 10-day suspension from school.

The teen being charged reportedly brought two marijuana cookies to school with him. Before school, he apparently gave one of the cookies to two other students to share. A Plantation police detective said the other students probably knew the cookie had marijuana. After eating the cookie at around 8:30 a.m., one of the teens started feeling stomach pain and went to the school nurse’s office, which prompted an investigation by the school. The teen responsible for bringing the cookies to school did not eat his other cookie and did not appear to be under the influence, but both of the teens who split the cookie appeared intoxicated. Both of the students who did eat the cookie were taken to Plantation General Hospital as a precaution, but appear to be fine.

The article goes on to say it’s relatively rare for teens to be arrested for edible marijuana offenses at school. As a Miami drug crimes criminal defense lawyer, however, I can assure readers that the same drug charges apply no matter what form the drug might have taken. Possession of less than 20 ounces of marijuana is a misdemeanor, but unfortunately for the defendant, distributing drugs within 1,000 feet of a school is a felony. This law is intended to discourage drug crimes at or near schools, but it also has the unfortunate side effect of turning a misdemeanor -- a teen’s mistake -- into a felony with a mandatory minimum of three years in prison. That’s not likely if the case is tried in juvenile court, fortunately, but that doesn’t mean the penalties will be reasonable. In addition to the criminal penalties for any drug convictions, the student could be made ineligible for federal student aid or military service, and the felony on his record could hurt him in future job searches. That’s why parents of teens facing drug charges should get in touch with a south Florida narcotics criminal defense attorney right away.

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January 26, 2011

Flawed Technology Allows Challenges to Majority of Tickets From Red Light Cameras

As a south Florida traffic tickets defense lawyer, I was very interested to read about major flaws in the red light cameras in use in Palm Beach County and many of its cities. As the Palm Beach Post reported Jan. 17, a court ruled in December that the county’s system breaks basic rules of evidence by failing to show that the drivers in question actually ran a red light. Phyllis Franklin, 50, of Riviera Beach got her ticket and dozens of others dismissed after showing that the picture of her license plate used as evidence didn’t show where or when the car was. Challenges like this have helped get dismissals for 72 percent of red light tickets generated by the red light cameras in the county. Traffic ticket attorneys said the ruling could halt or severely limit the use of red light cameras.

Franklin and other motorists in Palm Beach County are implicated by a video and photos. Most of these have a timestamp and enough context to show whether the motorist was in the intersection after the light turned red. But they don’t have the quality to show a legible license plate, so a close-up shot of the plate is also taken. That shot doesn’t have the timestamp or context -- which means it’s impossible to prove the plate belongs to the car shown in the other pictures. The situation feeds into the controversy about red light cameras, which police agencies like because they catch more offenders than human officers could, and because they typically pay for themselves. According to the article, the cameras cost $4,750 per month each, and West Palm Beach has generated $41,000 from the cameras since Oct. 1. However, critics say the cameras are cash cows disguised as public safety and violate the Sixth Amendment right to confront one’s accuser. They can also point to a 2008 study from the University of South Florida suggesting that red light cameras increase rear-end accidents.

As a Miami-Dade traffic tickets defense attorney, I’d like to add another objection: the cameras are unable to exercise independent judgment. Photos can’t be biased the way humans can, but they also can’t take into account the circumstances, and often don’t show the whole picture. They can also be adjusted, timed or interpreted incorrectly, which can and sometimes does result in unjustified tickets. And as this article shows, cameras aren’t always able to connect a license plate with a car caught violating the law. At $158 to $264 a ticket (in Palm Beach County), that’s an expensive mistake for the city government to make. In my opinion as a Fort Lauderdale traffic tickets defense lawyer, local governments should seriously consider whether the public safety benefits of red light cameras outweigh the drawbacks of falsely accusing nearly three-quarters of those ticketed. But if they want to keep the program alive, governments will have to redesign it so it meets the basic requirement to prove the accusations against motorists.

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January 19, 2011

Prosecutors Drop DUI Case Against South Beach Nightlife Promoter Michael Capponi

As a Miami-Dade drunk driving criminal defense attorney, I was interested to read about dropped charges for a nightclub promoter and real estate developer. Michael Capponi, who promotes nightlife events around South Beach, was arrested in late October for allegedly driving under the influence, according to the New Times Miami. Under the influence of what, however, was difficult to say because his blood-alcohol concentration readings were reportedly under the 0.08 legal limit and a urine test came back clean. Capponi has said publicly that he believes the arrests were connected to his acknowledged past as a heroin and methadone addict.

Capponi was arrested early in the morning of Oct. 22 after leaving a party. According to a New Times Miami blog post from the time, he was pulled over and then held for nearly 24 hours on bail of $1,000. On his release, he sent a statement to the media saying police told him he failed field sobriety tests. He said he blew a 0.06 BAC both times he took a breath test, only to have the officer insist that he must be on drugs. He voluntarily took a urine test, he said, but was kept overnight despite his cooperation. His statement said he was planning legal action against the police. In the more recent blog post, Capponi’s south Florida DUI defense lawyer said the urine test showed no drugs and that prosecutors should have waited for those results, as he said they normally do.

Of course, no one can tell us what the officers and prosecutors were thinking except those individuals. But as a Fort Lauderdale intoxicated driving criminal defense attorney, I suspect Capponi and his lawyer are right that Capponi’s past influenced their decisions. Police officers may have genuinely believed Capponi didn’t pass field sobriety tests -- especially since those tests are known to be unreliable -- and jumped to conclusions. However, those conclusions shouldn’t have survived even after the police received the contradictory evidence provided by the breath and urine test results. This situation shows that police officers and prosecutors absolutely do make mistakes -- and that sometimes, innocent people are criminally charged as a result. That’s why no one charged with a DUI in south Florida should plead guilty just because they believe the evidence against them is solid.

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January 12, 2011

Judge in Miami Prostitution Case Rules Defense May Have Limited Access to Client List

A prosecution out of Detroit isn’t getting much attention here in south Florida -- but as a Miami-Dade prostitution criminal defense lawyer, I’m very interested. According to the Miami New Times, Michigan authorities are prosecuting Gregory Carr, his ex-wife, Laurie Carr, and three other people -- all from south Florida -- for running a high-priced prostitution business named Miami Companions. A federal judge has agreed to let Gregory Carr’s attorney review a 30,000-name database of clients that’s currently in prosecutors’ possession, so that he can build an adequate defense. Reportedly, the database contains some information about customers’ sexual preferences as well as their names, jobs and contact information. The move has raised concerns about the privacy of those customers, who are not currently being prosecuted.

Miami Companions was set up as a high-end dating service, but reportedly charged as much as $500 an hour for sexual services. Though it was based in Miami, it did business around the world. Michigan authorities uncovered the business last summer and brought charges against the Carrs and three employees. Gregory Carr is charged with 11 counts of conspiracy to coerce and entice prostitution, coercion and enticement of prostitution and money laundering. His Florida prostitution defense attorney asked the judge earlier this month to order prosecutors to share the client database so they could prepare for trial. Prosecutors opposed this, saying they believe Carr was trying to embarrass past clients because they are also potential witnesses. The judge released the database, but ordered that the attorney be given only a paper printout of the clients with area codes from greater Detroit. That printout must be returned to prosecutors at the end of the case. The attorney may also review the entire electronic database at an FBI office in Tampa, but not take a copy home and return any notes at the end of the case.

As a Fort Lauderdale prostitution criminal defense lawyer, I hope this compromise allows Carr to defend himself adequately against the very serious charges he faces. In this case, the rights of the defendant -- who has a legal right to access to the information being used against him -- are at odds with the rights of the people on that client list. Those individuals are not currently charged with crimes and may never be, making their identities none of the public’s business. In fact, even if they are charged with crimes, the information on their preferences wouldn’t be necessary, or tasteful, to release to the public. In fact, being identified as a client could destroy relationships and careers for some -- which is why I wouldn’t be surprised to learn that clients have retained defense attorneys of their own.

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January 11, 2011

Lowered Standards for Identification of Fingerprints

A recent blog post by forensic consultant Paul Laska has valuable information for criminal defendants throughout florida and for south Florida criminal defense attorneys like me. In this post, Laska explains a change in policy for the International Association for Identification, which is the professional organization serving forensic fingerprint specialists. Last July, the IAI removed its ability to sanction specialists who make faulty identifications. As a result, there isn't much but professional pride to keep specialists from putting forth uncertain, sloppy or biased work as scientific and accurate. This has bad implications for both prosecutors and Miami criminal defense lawyers, who can't rely on fingerprint identification with the same confidence as before. In my own practice, I expect to rely more heavily than before on forensic specialists who can give their own opinions on the accuracy of a fingerprint identification, to defend clients who may be victims of false identification.

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January 5, 2011

Suspect Admits to Drinking and Driving on Suspended License in Fatal Hit-and-Run

An arrest in a high-profile fatal car wreck caught my eye as a Miami-Dade drunk driving criminal defense attorney. According to the Miami Herald, police have arrested Cedric Williams, 48, on suspicion of causing a crash that killed three people and seriously injured a fourth. Williams is accused of running a red light just before 4 a.m. on Jan. 2, smashing his van into a Honda Civic and leaving the scene. The crash killed Robbie Wissler, 25, Lindsey Ellen Ennis, 20, and Kayla Elizabeth Bain, 19; and sent Robert Judd, 69, to the hospital with serious injuries. Wissler was a recent transplant to Florida, entertaining visitors Ennis and Bain and family friend Judd.

Williams has a long arrest record and has been to prison ten times, most recently on charges of selling cocaine. Police say they got a call shortly before the crash about a man matching Williams’ description driving erratically. After the crash, Williams reportedly left the scene on foot despite minor injuries and paid a passing driver $20 for a ride. Miami police officers arrested him after a standoff at his home. Once in custody, he admitted to the police that he had been drinking, ran a red light and left the scene because his license was suspended. He waived his right to an attorney and reportedly cried as he described the accident. Currently, the charges against him include four counts of leaving the scene of an accident with death or serious injury and one count of driving with a suspended and expired license.

Anyone in the position Williams is now in would need a south Florida DUI criminal defense lawyer. But from the description in this article, I believe Williams needs help very quickly. When you are accused of a very serious crime like this one, the best thing you can do in your own defense is keep quiet until you can get advice and representation from an experienced attorney. By telling police his story, Williams is giving them information they may not get on their own and undermining any defense he may need to put together later. Waiving his right to an attorney guarantees that he won’t be able to get that help soon. Even in situations where the client genuinely feels remorse -- as this article suggests William does -- and wants to plead guilty, an experienced Fort Lauderdale intoxicated driving criminal defense attorney can still help negotiate fair and lenient penalties.

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December 30, 2010

Former University of Miami Baseball Player Charged With DUI and Probation Violation

At this time of year, much of my job as a Miami-Dade drunk driving criminal defense attorney is defending people caught in the police crackdown on intoxicated driving that always comes with the holidays. That’s why I was interested to read about the arrest of a former University of Miami baseball player who was kicked off that school’s team after a drug arrest. Frank Ratcliff, 19, was arrested for drunk driving Dec. 14 on Stock Island, where he has been living while working as a bellman at a hotel on Key West. His blood-alcohol level was reportedly 0.20, two and a half times the legal limit of 0.08. The arrest violated the terms of Ratcliff’s Drug Court deal for an earlier drug-dealing arrest, meaning he is likely to face further penalties for that offense as well.

Ratcliff was a star at Key West High School and did well with the Canes. However, he was arrested Sept. 9 after he sold 21 grams of marijuana -- less than an ounce -- to an undercover police officer. A subsequent search of his apartment in Coral Gables found 100 more grams of marijuana and 19 vials of hygetropin, a human growth hormone banned by Major League Baseball. In addition to being kicked off the baseball team, Ratcliff faced two drug possession charges and a charge of selling drugs within 1,000 feet of a school. He entered Miami-Dade’s Drug Court, a drug diversion program that allows participants to keep a drug conviction off their records if they complete addiction treatment and probation. This arrest violates that probation, exposing Ratcliff to potential prosecution.

As a Fort Lauderdale DUI criminal defense lawyer, I hope Ratcliff has a good attorney, because he will need help to deal with the consequences of this arrest. The DUI alone will carry multiple penalties -- four-figure fines, community service, probation and potential jail of up to nine months. Because Ratcliff is 19, he will lose his driver’s license for six months and be required to complete DUI school before getting it back. This is assuming there’s no illegal drug involved. In addition, the arrest could cancel his Drug Court participation, which would expose him to criminal prosecution for the possession and sales charges. An experienced south Florida intoxicated driving criminal defense attorney will negotiate hard to keep clients in the program. In this case, Ratcliff’s age may help, and the court may have sympathy if it believes he was drinking to avoid using drugs -- but this is ultimately up to the judge.

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December 22, 2010

Seltzer Law, P.A. Fights for Clients’ Right to Change Pleas and Stay in the United States

We’re pleased to announce that our south Florida drug crimes defense lawyers are using a Florida appeals court decision to fight for our client’s right to change his plea. We represent a client who would like to change his plea of no contest to drug charges in Miami-Dade County. Our client admitted to the charges in exchange for a withhold of adjudication and suspended sentence. This is a relatively common situation in Florida, where a withhold of adjudication permits defendants to avoid the negative civil and employment consequences of a criminal conviction, as long as they complete the terms of their sentence -- often probation. However, a withhold of adjudication does trigger an automatic deportation order after one felony withhold or two misdemeanor withholds. That’s why we’re fighting to vacate our client’s plea under a court decision called State v. Galazz.

In that case, Florida’s Third District Court of Appeal ruled last year that courts may not sentence defendants only to a suspended sentence after a withhold of adjudication. The defendant, Geseppe Galazz, pleaded to purchasing cocaine or possession with intent to purchase, and was given a suspended sentence with a withhold of adjudication. Under a Florida Supreme Court ruling, trial courts can’t do this, because a suspended sentence alone violates state law unless it arises from a probation matter. Galazz petitioned to the Third District to be allowed to vacate his sentence. The prosecution argued that while the sentence was illegal, the proper thing to do was to change the sentence, not allow Galazz to change his plea and potentially go to trial.

The trial court refused -- properly, in our view as Miami drug crimes defense attorneys -- on the grounds that Galazz never had a chance to agree to the change prosecutors sought. In addition to being unfair, this would violate the Fifth Amendment right against double jeopardy. Thus, the appeals court vacated the plea entirely, sending the case back to its start. In our case, the details are similar, and we are asking the Eleventh Judicial Circuit in Miami-Dade County for the same outcome -- vacating the client’s plea and allowing the case to be reheard. This is unusual, because defendants are rarely allowed to “take back” their pleas unless there’s a serious legal problem underlying them, as there is here. That’s why defendants should always, always get the advice of an experienced Broward County drug crimes criminal defense lawyer before pleading guilty, especially if they are subject to federal immigration law.

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December 8, 2010

Man in Halloween Night Police Beating Video Pleads Not Guilty to Resisting Arrest

As a south Florida criminal defense attorney, I have been following with interest articles about the alleged incident of police brutality by Miami police officers on Halloween. The incident at the annual Coconut Grove Halloween Street Party became locally famous after police were caught on video beating multiple people, seemingly at random. One of those people, 22-year-old Gilberto Matamoros, pleaded not guilty Nov. 24 to resisting arrest without violence. As the Miami New Times reported, Matamoros was also originally charged with disorderly conduct, but that charge was dropped. His criminal defense lawyers said they’d been told all charges would be dropped, but prosecutors changed their minds when the media entered the courtroom. The police department has declined to comment, citing an internal affairs investigation that has put two officers on desk duty.

The video is not high-quality, but seems to show Miami police officers pulling spectators out of the crowd, then restraining, hitting and arresting them without apparent provocation. The internal affairs department of the Miami police is investigating the events behind the video. However, prosecutors have still brought charges against Matamoros, a college student who was apparently one of the people beaten. His Miami-Dade criminal defense lawyers told the Miami Herald that he was just standing in the crowd when he was pulled out by officers and badly beaten. They said the only resistance Matamoros offered was attempting to protect himself, and that he blacked out before being booked into jail. His booking photo shows injuries to his face, and he went to Jackson Memorial Hospital after his booking.

Like many Fort Lauderdale criminal defense attorneys, I’m skeptical when the charge is resisting an officer without violence, because it’s a vaguely worded statute that is sometimes used to cover up wrongdoing or harass people who annoy the police. Under this law, it’s a crime to “resist, obstruct or oppose any officer.” Read very broadly, this could make it a crime to verbally object to what an officer is doing -- as many people in that video could be heard doing. Matamoros, like all U.S. residents, has a legal right to free speech and freedom from unreasonable arrests. Under the circumstances, he may have a strong defense against the resisting an officer charge -- and a strong case that the officers in the video are the criminals. However, making those cases requires professional legal help, which is why I’m glad he has attorneys to protect him as his case moves through the court system.

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December 3, 2010

Miami Beach Police Officer Sentenced for Drunk Driving Injury Crash

South Florida residents who follow criminal defense news may remember reading about a long-running DUI case involving a Miami Beach police officer. Jesus Barrenechea was charged with leaving the scene of an injury accident in connection with a December 2007 crash, but the Florida Highway Patrol’s investigation was delayed by apparent lack of cooperation by Barrenechea’s colleagues. A recent article about the end of the case caught my eye as a Miami DUI criminal defense attorney. As the South Florida Sun-Sentinel reported Nov. 30, the prosecution ended the day before, when Barrenechea pleaded no contest and received a sentence of two years of probation.

Barrenechea was originally investigated for drunk driving, driving on the wrong side of the road, failure to render aid, grand theft and making a false insurance claim. All of those charges stem from his crash on Dec. 6, 2007, when he allegedly drove the wrong way on Interstate 95 while intoxicated. The crash left three women in the other car with minor injuries. The FHP said Barrenechea ran away down an embankment and was found on a nearby street, showing signs of intoxication. Later, they accused him of making a false insurance claim by telling the insurer he was a passenger and asleep at the time of the crash; he received $24,000. He was ultimately charged only with leaving the scene, but his Fort Lauderdale drunk driving criminal defense lawyer said this was not special treatment, and that not enough evidence supported the insurance claims.

As a West Palm Beach intoxicated driving criminal defense attorney, I suspect he’s right. Prosecutors don’t bring charges they cannot prove because they know they will lose. If the FHP investigation couldn’t turn up enough evidence to prove drunk driving -- for example, if they didn’t have a blood-alcohol content reading -- they simply couldn’t give prosecutors enough to go to court. In Barrenechea’s case, this may be especially important because he was a police officer, and they can be fired for conduct that wouldn’t matter at other jobs. This may also be why he chose to plead no contest with adjudication withheld. That’s similar to a guilty plea, but leaves him certain civil rights that might otherwise be taken away, and may not count as a conviction on his record in future job searches.

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November 2, 2010

When Accused of Any Crime, Remember You Have the Right to Remain Silent

Pop quiz: If you are arrested, what should you say to the police?

a) Explain why you are innocent.
b) Confess, if you are guilty.
c) Identify yourself, then say nothing more.

Some defendants may be surprised to find out that the answer is c) -- regardless of whether you committed the crime you’re accused of. In fact, as a West Palm Beach criminal defense lawyer, I advise all of my clients to politely decline any questions from police until I can get there. Doing otherwise can lead to big trouble -- a criminal conviction, new charges, implicating someone who you'd like to protect. In fact, two recent Supreme Court cases have dealt with cases that could have been tainted by failure to explain that the defendants had the right to stay silent. In this post, I’d like to discuss why that’s one of the most important rights available to anyone who is suspected or accused of a crime.

Fundamentally, you should never talk to the police because talking to the police can’t help your case. That’s true regardless of whether you are guilty. But let’s say you’re not guilty of the crime they’re asking about, so you think it’s okay to tell them whatever you know. This is bad because:

  • The police are not interested in proving that you’re not guilty -- their job is to get a confession. Their job makes them suspect that anything you say is a lie unless it fits with what they know or think they know.
  • Police interrogations are designed to be stressful, to make it harder to think about your answers and remember your rights. This makes it easy to contradict yourself by accident or even say things that aren’t true. In fact, the Innocence Project, which uses DNA evidence to free people who are in prison for crimes they didn’t commit, found that a quarter of its clients had confessed -- even though scientific evidence proved they were innocent.
  • By giving the police more information about yourself, you’re giving them reasons to blame the crime on you. For example, if you say you don’t like your neighbor’s loud dog, they could decide that’s a motive for the neighbor’s murder.
  • Any time you make any statement, it can be compared with something you said earlier or something you say later. If those things seem to contradict each other, the police can call you a liar in court. This actually happens, even with small, unimportant statements or with details no one could reasonably remember.
  • Any statement you make, even a true statement, can be contradicted by a witness who is lying or remembers wrong, or by faulty physical evidence.
  • You could inadvertently confess to something else. There’s no guarantee that the police are interested only in the events you think they’re interested in.
  • If you talk to police officers without a non-police witness or a recording, you have no guarantee that the officers will remember the interrogation the same way you did. Even if you say nothing to incriminate yourself, they could remember a detail differently and make you look like a liar. More rarely, officers can lie intentionally.
  • Even if officers do listen and believe the evidence supports your story, they cannot testify at trial about what you said. Under a legal rule called the hearsay rule, no one can testify that something is true without direct, firsthand experience.

Many of these objections also apply to people who are guilty and want to confess. For example, let’s say you confess in the interrogation room that you did kill your neighbor’s dog. That’s not the same as confessing that you killed the neighbor, but if there was no recording of your confession, you have no way to prove that. Furthermore, with the help of Miami-Dade criminal defense attorney, you can use a guilty plea to negotiate a lighter sentence, lower charges, immunity or a chance to pay restitution. You won’t have that opportunity if the police have a confession on record before charges are even filed.

The best way to avoid these problems is to have an Orange County criminal defense lawyer like me present to protect your rights. As an attorney, I know the law, so I can object to questions and interrogation tactics that violate my clients’ rights. I can tell clients which questions shouldn’t be answered. And I can help clients use the information they do have to get the best possible outcome, whether that means a not guilty verdict or a plea deal. As a client, your job is to ignore police questions, pressure and intimidation tactics until I can get there. You can should identify yourself and be polite, but your answer to every other question should be “I can’t answer that without a lawyer.”

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September 1, 2010

Horribles Historias de la Internet

About the show:
El 6 de Septiembre del 2010 a las 10:00 pm, El show de Cristina estara presentando un programa con el tópico de los horrores del internet (“Horror stories of the Internet”) En este episodio hay familias y individuales que comparten historias de las terribles experiencias del internet como historias de asesinatos, historias de robo y historias de fuera de contexto.

El internet ha traido muchos beneficios a nuestra cultura pero con esos beneficios también han habido tragedia la Licensiada Sasha Berdeguer y el Agente S. Santiago han presentado formas como evitar problemas ciberneticos.

Contacted for the show:
La licensiada Sasha Berdeguer fue contactada por el estudio de Cristina para hablar de su experiencia legal relacionada con los crimenes cibernéticos y crímenes. Como protegernos predatores del internet.

Experience in relation to internet crimes:
La experiencia de la licensiada Sasha Berdeguer es defendiendo victimas y acusados de crímenes cibernéticos.

http://www.cristinaonline.com/spanish/show/index.asp

Para comunicarse con la Licensiada Sasha Berdeguer, llame al 888-THE DEFENSE (888) 843-3333.

June 15, 2010

Swiss Considering Referendum on Law That Would End Tax Dispute With the U.S.

As a South Florida tax evasion criminal defense attorney, I wrote a great deal last year about a crackdown on U.S. taxpayers who fail to declare income from overseas bank accounts. That crackdown was sparked by revelations from an employee of Swiss bank UBS that the bank had actively helped U.S. clients avoid reporting income. As a result, the IRS launched a special amnesty program that offered lighter penalties for taxpayers who came clean before mid-October -- but promised harsh penalties for proven tax evaders. At the same time, a lawsuit from U.S. authorities required UBS to turn over the names of tax evaders, which caused controversy in Switzerland’s famously secretive banking community. Now, the New York Times reported Jun 15, the Swiss Parliament has approved a deal that would end the international dispute -- but wants to put it to a popular vote, putting the outcome in doubt.

Switzerland agreed in August of 2009 to turn over 4,450 names, to settle a lawsuit brought by the U.S. Justice Department. But the Swiss high court ruled that parts of the settlement violated Swiss banking law, so the country’s legislature had to approve changes to the law in order to comply with the settlement agreement. The upper house of the Swiss Parliament has already approved the law but not a referendum; the lower house approved both. Now, the upper house must hold another vote, and if the two houses can’t agree, the settlement agreement could be broken. The referendum, if it passes, would take months, with no guarantee of a vote that would confirm the settlement agreement. That means there will certainly be some delay before the 4,450 names are turned over, keeping all of those U.S. taxpayers in further suspense despite nearly a year since the agreement was reached. If the Swiss government and people can’t meet their obligations, the Justice Department could take further legal action.

For taxpayers with UBS accounts who are not eager to see their names given to the IRS, this delay could be a relief. But it’s only a temporary relief, and as a Miami tax evasion criminal defense lawyer, I urge taxpayers who think they might be on that list not to ignore it. The IRS has already signaled that it intends to deal harshly with people who it thinks intentionally evaded their taxes, a crime that brings up to five years in prison and steep fines that can exceed the amount of income not declared. By contrast, the IRS was gentle last year with people who voluntarily disclosed undeclared income ahead of an Oct. 15 deadline, promising a low possibility of prison and fines of 5 to 60 percent of the undeclared income. The voluntary disclosure program was extremely popular -- so much that the IRS extended it an extra month -- and brought in accountholders at other overseas banks as well as UBS clients.

Presumably, all of those voluntary disclosers felt that staying silent wasn’t worth the risk of being identified and harshly prosecuted. Many people with overseas accounts rely on their accountants or the relatives who once owned the accounts for information on taxes. Some may not have realized they were doing anything illegal, especially since UBS admits that it actively helped clients hide their assets. The IRS may deal less harshly with those people -- but only if it believes they were acting in good faith. Voluntary disclosure is one way to show good faith and secure a promise of more lenient treatment.

However, it’s important to realize that voluntary disclosure can require more interactions with the IRS as it verifies your paperwork and evidence of good faith. That’s why many voluntary disclosers in 2009 hired Fort Lauderdale tax evasion criminal defense attorneys like me. An attorney can help clients determine which documents and information must be disclosed to the IRS. Clients may also want a defense lawyer by their sides as they sit through the in-person interviews with the IRS that were frequently required during last year’s voluntary disclosure program. And of course, an experienced tax evasion criminal defense lawyer can help clients confused by our Byzantine tax code decide whether they need to disclose in the first place. But to do this successfully, taxpayers must approach the IRS before it approaches them, because a voluntary disclosure won’t be honored if it comes after the taxpayers find out they’re under investigation. So it’s essential to get started as soon as possible -- before the Swiss government can approve its settlement.

Continue reading "Swiss Considering Referendum on Law That Would End Tax Dispute With the U.S. " »

April 23, 2010

Polk County Nets 50 in Child Pornography Sting

Polk County Sheriffs office rounded up 50 individuals and charged them with crimes ranging from possession of child pornography, sexual abuse, to production of child pornography. These charges range in penalties, but carry the designation of sex offender for life. David Seltzer is an experienced attorney when it comes to child pornography and cyber crime cases. All consultations are FREE and we practice throughout the United States. Please call today 24/7 if you or a loved one are facing any cyber crime or child pornography related charges. We can be reached toll free at 1-866-ARRESTED (within Florida), or at 888-THE DEFENSE (888-843-3333). For more information on child pornography or the firm, please visit our website.

April 19, 2010

Florida Legislators Consider Standardizing Local Sex Offender Laws

As a Fort Lauderdale sex offender registration violation defense attorney, I work with sex offenders who face a lifetime of restrictions on their movements and activities. This work has given me insight into the effects these laws have on the lives of people who are trying to build new lives while obeying the law, as well as their neighbors. That’s why I was pleased to see that the state Legislature is working to help them by making sex offender restrictions uniform across the state, and removing the most onerous local restrictions on residency. The law would replace a patchwork of 168 local regulations that can create confusion among offenders by setting different residency standards in different cities and counties. It will also make regulations more effective by restricting offenders’ daytime activities.

The proposed bill in the Florida Senate would establish a 2,500-foot zone around schools and day care centers. Registered sex offenders would not be permitted to live in those zones and must leave them between 10 p.m. and 6 a.m. This is the same distance as restrictions already in place in Miami-Dade, Broward and Palm Beach Counties, but includes fewer places where children may gather. This part of the bill seeks to stop sex offender laws from creating homelessness, the South Florida Sun-Sentinel said April 14. The bill also establishes 300-foot buffer zones around schools, day-care centers, parks and playgrounds. Again, sex offenders may not loiter or “prowl” in those zones, but this restriction applies 24 hours a day. The Florida House version of the bill contains the buffer zones but omits the 2,500-foot residency restriction. It also prohibits offenders from dressing as Santa Claus or clowns, or passing out candy on Halloween. The House will vote April 22 on its measure.

This bill follows on the heels of a Miami-Dade County ordinance establishing buffer zones, and Broward County is considering a similar law. In fact, state lawmakers have been debating such a law for at least three years, since the colony of homeless offenders under the Julia Tuttle Causeway gained national attention. As a West Palm Beach sex offender registration criminal defense lawyer, I am delighted that the state is finally tackling this issue, and in a way that serves both the public interest and the needs of sex offenders trying to build new lives. Supporters say the buffer zones are actually more effective than residency restrictions, because they keep offenders away from kids during the day -- when schools and day-care centers are actually open.

By contrast, residency restrictions allow offenders to legally hang around schools and parks during the day. And as I’ve written here several times, those restrictions also make it very difficult for offenders to find a legal place to live. This helps create homelessness among offenders, who are typically legally barred from living with family members or friends and may not have access to affordable housing anywhere. The lack of a fixed address makes it harder for homeless ex-offenders to find a job, and all of those circumstances help alienate them from the society they should be trying to re-enter. In addition, homelessness makes it harder for law enforcement to track the movements of offenders, one of the stated goals of the original laws. This bill is one step toward taking away those problems.

The Senate version of the bill has attracted criticism from people who believe the 2,500-foot residency restriction is too restrictive and can still cause homelessness. As a Miami sex offender registration criminal defense attorney, I would prefer a smaller residency restriction, or one that’s narrowly targeted according to the circumstances. But even with the 2,500-foot restriction, this bill is still less restrictive than many county ordinances, and that’s something to celebrate. And with the buffer zone, the Legislature may be able to genuinely protect children better while also making Florida an easier place to live for registered sex offenders.

March 8, 2010

City of Miami Scatters Sex Offender Colony Under Julia Tuttle Causeway

As a Miami sex offender registration defense attorney, I was extremely interested to read that the city is taking steps to destroy its most notorious homeless encampment. According to a March 6 article from the Miami Herald, city work crews destroyed the encampment next to the Intracoastal Waterway that had housed as many as 100 homeless registered sex offenders. Many ended up there after sex offender residency restrictions made it difficult for them to live with relatives. But the camp caused a public outcry after it was discovered that law enforcement was actually sending offenders there if they had no place to go after release.

Mario Vasquez says this happened to him. The 24-year-old says Miami-Dade police ordered him to move under the bridge after his release from prison four years ago. He served two years for having consensual sex with his 14-year-old girlfriend when he was 18. State lobbyist Ron Book, who has been fighting to break up the sex offender camp, said he would work with county authorities to find another place for Vasquez or send him back to his native Dominican Republic. Book heads the county’s Homeless Trust and has helped many of the offenders find other housing. He also helped pass the original sex offender residency laws, which he still supports, although he said he never intended to create police-ordered homeless encampments.

The Miami Herald had video of the camp’s dismantling:

A former resident of the camp named Patrick told the newspaper that there will be another such camp, even if it’s not under this particular bridge. As a Fort Lauderdale sex offender registration defense lawyer, I am concerned that Patrick may be right. Even when police don’t outright tell offenders to live under a bridge, the harsh restrictions keep them from living in almost any populated area. Without family or friends to fall back on, and with no job waiting when they get out of prison, they may have no way to avoid homelessness. This is bad for the offenders’ basic needs and rights, of course, and it makes it harder for them to get jobs and return to society. But it’s also a problem for law enforcement, because homeless offenders are harder to keep track of -- undermining the original purpose of the registration laws.

As a West Palm Beach sex offender residency criminal defense lawyer, I don’t know of any other crime that is treated as harshly as sex offenses. After other kinds of offenders have done their time and served probation, they only have limited restrictions on their rights and obligations to disclose their pasts. This includes people convicted of serious and violent, but non-sexual, crimes. As the article points out, Miami-Dade County has already taken steps to open more areas to residency by offenders, and other counties (or the Florida Legislature) may follow. But if legislators don’t have the courage to open up residency laws for offenders who merit lighter treatment -- or even distinguish between types of offenders -- Patrick’s prediction is likely to come true.

March 8, 2010

City of Miami Scatters Sex Offender Colony Under Julia Tuttle Causeway

As a Miami sex offender registration defense attorney, I was extremely interested to read that the city is taking steps to destroy its most notorious homeless encampment. According to a March 6 article from the Miami Herald, city work crews destroyed the encampment next to the Intracoastal Waterway that had housed as many as 100 homeless registered sex offenders. Many ended up there after sex offender residency restrictions made it difficult for them to live with relatives. But the camp caused a public outcry after it was discovered that law enforcement was actually sending offenders there if they had no place to go after release.

Mario Vasquez says this happened to him. The 24-year-old says Miami-Dade police ordered him to move under the bridge after his release from prison four years ago. He served two years for having consensual sex with his 14-year-old girlfriend when he was 18. State lobbyist Ron Book, who has been fighting to break up the sex offender camp, said he would work with county authorities to find another place for Vasquez or send him back to his native Dominican Republic. Book heads the county’s Homeless Trust and has helped many of the offenders find other housing. He also helped pass the original sex offender residency laws, which he still supports, although he said he never intended to create police-ordered homeless encampments.

The Miami Herald had video of the camp’s dismantling:

A former resident of the camp named Patrick told the newspaper that there will be another such camp, even if it’s not under this particular bridge. As a Fort Lauderdale sex offender registration defense lawyer, I am concerned that Patrick may be right. Even when police don’t outright tell offenders to live under a bridge, the harsh restrictions keep them from living in almost any populated area. Without family or friends to fall back on, and with no job waiting when they get out of prison, they may have no way to avoid homelessness. This is bad for the offenders’ basic needs and rights, of course, and it makes it harder for them to get jobs and return to society. But it’s also a problem for law enforcement, because homeless offenders are harder to keep track of -- undermining the original purpose of the registration laws.

As a West Palm Beach sex offender residency criminal defense lawyer, I don’t know of any other crime that is treated as harshly as sex offenses. After other kinds of offenders have done their time and served probation, they only have limited restrictions on their rights and obligations to disclose their pasts. This includes people convicted of serious and violent, but non-sexual, crimes. As the article points out, Miami-Dade County has already taken steps to open more areas to residency by offenders, and other counties (or the Florida Legislature) may follow. But if legislators don’t have the courage to open up residency laws for offenders who merit lighter treatment -- or even distinguish between types of offenders -- Patrick’s prediction is likely to come true.

December 28, 2009

Investigation Finds Dropped Charges More Likely for DUI Defendants With Lawyers

As a Fort Lauderdale drunk driving criminal defense attorney, I was not at all surprised by a recent article in the Daytona Beach News-Journal. The newspaper is in the middle of a three-part series on drunk driving in Volusia County, focusing on cases where prosecutors brought only one DUI charge, typically against a first offender. Its first part, published Dec. 27, looks at how prosecutors decide to drop, reduce or pursue DUI charges. Its unsurprising conclusion: Defendants with private attorneys are more than twice as likely as those with public defenders to win dropped or reduced charges, which means they never get a first drunk driving conviction on their records.

The article goes into detail about why defendants with private representation tend to do better than those with public defenders. According to the News-Journal, public defenders often aren’t even assigned to a DUI case until the defendant makes a decision about how to plead. They also have heavy caseloads -- 300 to 400 cases each, the newspaper said. By contrast, private attorneys can get involved as soon as the defendant calls, and their caseloads are typically closer to 50 cases at a time. They also have specialized DUI defense experience, giving them a better chance of finding flaws in the cases against their clients. Other factors making dropped charges more likely include mistakes by the arresting officer, flawed evidence and videotapes of the arrest that don’t show obvious intoxication. And the article noted that public defenders cannot represent clients at the DHSMV hearing, as private attorneys can and do.

I use these defenses almost routinely in my work as a Miami-Dade DUI defense lawyer. As the article notes, one mistake by an officer can mean throwing out the evidence created by that mistake. For example, one woman in the article was told that she had to submit to field sobriety tests, which is simply not true in Florida. Her lawyer filed to suppress the resulting evidence, which ultimately allowed her to plead guilty to reckless driving. A conviction for reckless driving still carries probation and alcohol classes -- but it keeps a DUI off your record. That means there won’t be a first conviction on your record in the event of another DUI charge -- though the article says 90% don’t re-offend.

I believe this is the strongest argument possible for hiring a South Florida DUI criminal defense lawyer like me, if you’re facing drunk driving charges. The penalties for a first intoxicated driving conviction in Florida are severe, including potential jail time, loss of your driver’s license, hundreds of dollars in fines, probation and community service. As the article notes, hiring an attorney isn’t always cheap -- but neither are the costs of all of these penalties. If losing a license means losing a job, the cost is even higher, in both dollars and financial security. And of course, the benefit of keeping a criminal conviction off your record is not always measured in dollars. An Orlando drunk driving defense attorney like me can’t promise a specific result -- but as the article showed, statistics are on our side.

December 14, 2009

Lack of Evidence Means Tiger Woods Unlikely to Be Prosecuted for Intoxicated Driving

As a South Florida drunk driving criminal defense attorney, I have been avoiding writing about Tiger Woods. It seemed like there was more speculation than actual evidence showing that he was under the influence when he crashed his SUV into a fire hydrant Nov. 27. But last week, new information was released showing that Woods was unlikely to face any intoxicated driving charges. According to a Dec. 7 article from the Associated Press, the FHP trooper who responded to the accident requested blood test results to see if Woods was intoxicated, but prosecutors denied the request because there was insufficient evidence. This news means that police and prosecutors simply won’t have the breath or blood test evidence necessary to bring a solid DUI case against Woods.

In Florida, you can be charged with DUI for driving while intoxicated by alcohol, prescription drugs, street drugs or some combination of those. According to the article, a witness who was likely Elin Nordegren, wife of Tiger Woods, told the trooper that Woods had been drinking, and had legal prescriptions for both Vicodin and Ambien. Both are drugs with sedative effects, and doctors say neither should be mixed with alcohol. (As I noted recently, Ambien is not on Florida’s list of substances that are illegal to take before driving, although this may change.) However, no evidence I know of suggests that Woods had actually taken the drugs that night, and the prosecutor’s office apparently decided that the evidence of alcohol intoxication was weak or nonexistent.

In fact, this Dec. 9 article from Central Florida News 13 says Woods did not even have a smell of alcohol, which would strengthen any case against him. A former Orange County DUI prosecutor interviewed in the story said he thought “the judge would laugh [prosecutors] out of the courtroom” if they tried to subpoena medical records without witnesses or stronger evidence. As a Fort Lauderdale intoxicated driving criminal defense lawyer, I’d like to add that the only reported evidence that Woods was intoxicated was the word of his wife. Reports suggest that Nordegren was angry with Woods at the time, and subsequent reports of his infidelity suggest that she may be still. This gives her a motive to lie, making her an unreliable witness. This is far from sufficient to support a case without additional breath or blood test evidence, field sobriety tests or even a trooper’s documented observations of intoxication.

To win a DUI conviction in Florida without a blood or breath test reading, prosecutors must show that the accused was “under the influence” of alcohol or certain specific drugs. This is a vague standard that’s difficult to prove, even when the evidence is stronger than the word of an angry spouse. As a Miami-Dade DUI criminal defense attorney, I routinely advise clients to plead not guilty and defend intoxicated driving cases without a breath or blood test. Even if nobody was harmed, a first charge of driving under the influence has serious consequences in Florida, including potential jail time, probation, a six-month license suspension, vehicle impoundment and hundreds of dollars in fines. This puts a criminal charge in your record, can cause serious trouble at work and will certainly cause and an immediate increase in your auto insurance rates. When you’re facing penalties that serious, it only makes sense to mount a strong defense with help from an experienced Orlando drunk driving defense lawyer.

December 7, 2009

IRS Launches New Offshore Tax Evasion Investigation Connected to Stanford Ponzi Scheme

As a South Florida tax evasion criminal defense attorney, I have been keeping track on this blog of the investigation by the U.S. Internal Revenue Service into overseas tax evasion. Through much of 2009, the IRS actively pursued the names of accountholders at Swiss bank UBS, which had acknowledged helping U.S. taxpayers hide their assets to avoid taxation. The agency claimed throughout that its investigation was just part of a larger crackdown on tax evaders with overseas financial accounts. Now, news reports show that this was likely the truth. As a Dec. 3 article from Bloomberg News reported, the IRS has filed for the names of certain taxpayers in the ongoing fraud case of R. Allen Stanford, a Texas financial mogul accused of running a $7 billion Ponzi scheme involving fraudulent certificates of deposit. He also faces an SEC lawsuit.

According to Bloomberg, the IRS is interested in the names of Stanford investors who had overseas accounts between 2002 and 2008, in CDs at his Antigua-based Stanford International Bank Ltd. In a statement, the IRS claimed an unnamed taxpayer told it that statements from the Stanford bank and CD accounts did not state interest or income. Disclosing such income from overseas accounts is required under federal tax laws; failing to report it puts taxpayers at risk of criminal tax evasion charges, which carry up to five years in prison and six-figure fines. Stanford’s businesses are being managed by a court-appointed receiver because Stanford is imprisoned without bail; that receiver said he would comply with all legitimate requests. The court-appointed attorney representing Stanford investors said the anonymous disclosure suggested that Stanford “made an effort to keep CD investors from learning about the IRS reporting violations.”

Like that attorney, I hope the IRS keeps this in mind during its investigation. As I wrote during the UBS investigation, many taxpayers depend on their tax professionals and financial institutions for information about tax reporting. Someone without a financial background may genuinely not know that overseas income is taxable, especially if the bank fails to report it. Tax evasion is a serious charge, carrying up to five years in prison for each count, along with fines so high that they can even exceed the value of the account. As a Miami tax evasion criminal defense lawyer, I believe these are very serious penalties that may be disproportionate to the crime if the taxpayer genuinely didn’t realize there was a reporting requirement. And unfortunately, a tax crime investigation may literally add insult to injury for taxpayers who are already victims of Stanford’s Ponzi scheme. In fact, there may be nothing available for the IRS to take in some cases.

During the months-long UBS investigation, the IRS offered a voluntary disclosure program for taxpayers willing to come clean in exchange for substantially reduced penalties. These taxpayers would still have to pay back taxes and reduced penalties, but were not eligible for prison in most cases. This was an ideal offer for accountholders who never intended to evade their taxes, and the program saw an unprecedented flood of takers throughout 2009. That window of opportunity for UBS accountholders closed in mid-October, but the IRS offers a voluntary disclosure program year-round for people with any unreported legal income.

I offered my services as a Fort Lauderdale tax evasion defense attorney to UBS accountholders during their seven-month window. I suspect that this will remain an active practice for me in 2010, because these recent actions signal that the IRS is serious about tracking down tax evaders whenever it spots an opportunity to do so. The voluntary disclosure program is not available to people who are under investigation already, so if you may come under suspicion, it’s vital to make a move first. Admitting ignorance or wrongdoing, and paying the fines, may hurt -- but compared to the harsh consequences of a criminal conviction, voluntary disclosure seems like by far the better option.

December 1, 2009

Editorial Calls for Replacement of DUI Roadblocks With Roving Police Patrols

As a Fort Lauderdale drunk driving criminal defense attorney, I was pleased to see a Nov. 28 editorial in the South Florida Sun-Sentinel pointing out major problems with sobriety checkpoints. These are the roadblocks set up by police, in which they stop every driver (or one out of every few drivers) passing that point to check for signs of intoxication. As the editorial points out, these DUI checkpoints are particularly popular around the holidays, when law enforcement expects more drunk drivers on the road. However, the editorial says, sobriety roadblocks are extremely ineffective compared to roving law enforcement patrols, in which officers simply take to the streets and actively look for drunk drivers.

According to the article, written by Sarah Longwell of the American Beverage Institute, roving patrols are both cheaper to taxpayers and better at catching drunk drivers than checkpoints. To illustrate this, it uses several examples from other states. For example, in Delaware, the 2008 holiday season saw 30 arrests at DUI checkpoints. During the same time period, roving patrols of officers arrested 276 more drivers. In fact, the article says, the Pennsylvania Department of Transportation says roving patrols are 10 times more effective than roadblocks. One reason the article gives for this is that at checkpoints, officers wait for drunk drivers to come to them, while roving patrols actively seek offenders. It also notes that once one driver knows where a checkpoint is, it isn’t hard for that driver to warn friends via cell phone or Internet. Furthermore, it notes that checkpoints can cost as much as $10,000, while roving patrols can cost as little as $300.

As a South Florida DUI defense lawyer, I would like to add that there are serious legal and philosophical problems with sobriety checkpoints as well. By design, sobriety checkpoints pull over everyone who passes, regardless of whether there’s a reasonable suspicion that the drivers pulled over are intoxicated. Under normal circumstances, any charges resulting from a stop made without probable cause would be illegal under the Fourth Amendment. The U.S. Supreme Court has ruled that the checkpoints themselves are legal, even though they violate our constitutional right to be free of unreasonable search and seizure, because of their contribution to public safety. Some defense attorneys call this the “DUI exception” to the Constitution. Several states have outlawed sobriety checkpoints, but Florida is not one of those states.

As a Miami drunk driving defense attorney, I am uncomfortable with the “DUI exception” to the Constitution. I understand the importance of taking drunk drivers off the streets -- but I do not believe that goal should be attained at the expense of our civil rights. And if the facts presented by this article are true, law enforcement may not even be finding intoxicated drivers in the most financially efficient or practical manner. In my criminal practice, I’ve certainly met people who were not intoxicated enough to be pulled over by a passing cop, but who were nabbed at a roadblock by officers who took their nervousness as an admission of guilt. Sobriety roadblocks implicitly accuse everyone who passes by of being a criminal until they prove otherwise, which is offensive, mildly absurd and even a bit of a threat. If they also don’t work well, we should focus government resources on something better.

November 24, 2009

Palm Beach County Sheriffs Deputy Acquitted of DUI-Drugs for ‘Sleep Driving’

As a Fort Lauderdale drunk driving defense attorney, I was interested to see a recent news report about a DUI from combining alcohol and prescription sleep aid Ambien. According to a Nov. 19 article from WPEC (CBS 12), Palm Beach County Deputy Christopher Grube was acquitted of driving while intoxicated during his off-duty hours. Grube was driving his patrol car in early February when he lost control on an expressway, skidding into a tree in the median. Grube failed field sobriety tests at the scene, a process that was caught on the dashboard camera of his police vehicle. Nonetheless, a West Palm Beach jury acquitted him last week. He is still on paid leave from his job, pending results of an internal investigation.

Grube admitted to having had “a couple” of drinks hours before his crash, and his Palm Beach County DUI lawyer said he was clearly impaired. However, he said, the real cause of the intoxication was the prescription drug Ambien (zolpidem), a newer prescription sleep aid. Grube intended to take a different drug, he said, but mistakenly mixed the Ambien with alcohol, accidentally causing severe intoxication. It’s well-documented that Ambien can cause patients to get up, move around their homes and even drive while asleep, the defense attorney said, even when not mixed with alcohol. Mixing the two can actually increase the drug’s effects. Ambien is not a controlled substance in Florida -- but even if it is, the attorney argued, Grube never intended to take it before driving.

I believe this is a good example of why people charged with a DUI should never plead guilty without at least speaking to an experienced South Florida DUI criminal defense lawyer. Even in a case like this, where the evidence of intoxication is clear and undisputed, prosecutors still must prove their cases. To convict someone of intoxicated driving in Florida, prosecutors must show that the accused had physical control of a vehicle, and:

  • has a blood-alcohol concentration of 0.08 or greater, tested by breath or blood;
  • is under the influence of alcohol; OR
  • is under the influence of substances listed in the Florida codes, including prescription drugs as well as street drugs and solvents, and is affected to the extent that his or her normal faculties are impaired.

Presumably, Grube either did not have a 0.08 BAC or refused to provide a sample, making it more difficult for prosecutors to convict him of alcohol intoxication. This would have left prosecutors only with a DUI-drugs charge -- and that charge apparently failed. Grube’s attorney is right that Ambien has a history of causing sleepwalking and even sleep driving, which has generated DUI charges against patients in other states, As a Miami-Dade DUI defense attorney, I support a full review of whether Ambien should be on Florida’s list of controlled substances. However, until the Florida government makes such a change, drivers cannot be convicted for driving under the influence of Ambien. And as the article notes, that may be especially true when the driver never intended to take the Ambien, and thus become intoxicated, in the first place. Conduct that is not illegal should never lead to a criminal conviction, no matter how socially or politically unpopular it may be.

November 18, 2009

IRS Announces Unprecedented Settlements Under Voluntary Disclosure Program as UBS Prepares to Disclose More Names

I have written here about the IRS voluntary disclosure program several times in the past. As a Miami-Dade tax evasion criminal defense attorney, I was extremely interested in the opportunity it offered taxpayers to avoid harsh penalties from the IRS crackdown on taxpayers who, through innocent mistakes or deceit, failed to declare their income from overseas bank accounts. The voluntary disclosure program ended Oct. 15, and according to the Associated Press, it helped more than 14,700 U.S. taxpayers clear their tax accounts without risk of criminal prosecution. The article also says that Swiss bank UBS is ready to disclose the first of the 4,450 names of American tax scofflaws as part of a settlement in related litigation. That includes 400 names to be disclosed by the end of this week -- meaning that 400 taxpayers will need experienced South Florida tax evasion criminal defense attorneys very soon. If you're one of them -- or you have another reason to be concerned about tax evasion prosecution -- don't hesitate to contact my office online or call 1-866-ARRESTED toll-free from anywhere in Florida for a free consultation.

For more information, you can read the AP article in the Miami Herald: IRS settles with 14,700 over foreign accounts

November 16, 2009

Candidate Tells Legislature to Make Professional Licensing Harder for Former Felons

As a South Florida criminal defense attorney, I was disappointed to see comments from our state’s attorney general suggesting that he’d like to make professional licenses tougher to get for convicted felons. According to a Nov. 3 article from the Associated Press, Attorney General Bill McCollum, who is running for governor, objects to a law requiring Florida licensing agencies to grant licenses to former felons who had their civil rights restored and have completed a three-year waiting period. The law provides an exception for licenses directly related to the crimes. For example, someone accused of embezzlement while working as an accountant would have no right to a CPA license.

In a meeting of three Florida House of Representatives panels, McCollum said he’d like that law repealed or modified. He said he believed it tied the hands of the licensing agencies, forcing them to grant licenses to people who would not otherwise receive them. The committees are studying the issue in response to a South Florida Sun-Sentinel article detailing how the screening process failed to stop convicted felons from working as caregivers for children, the disabled and the elderly. McCollum would like the waiting period expanded to five years and to give agencies the power to revoke licenses if new information comes to light. George Sheldon, the secretary of the state Department of Children and Families, added that he’d like a requirement that candidates wait until a background check is finished before beginning to work.

I agree with Sheldon, and with the license revocation suggestion by McCollum. But as a Miami criminal defense lawyer, I have strong reservations about making it more difficult for ex-felons to obtain the tools they need to build new, law-abiding lives. The state can and should be extra careful when considering whether to grant licenses to former felons -- but for the most part, our system already has the necessary safeguards in place. As noted above, ex-convicts must have their civil rights restored before this law applies, a lengthy process requiring an application, a hearing, an investigation and sometimes letters of support from employers and community members. In addition, they are not entitled to professional licensing in areas related to their crimes. The Sun-Sentinel investigation found many people working as caregivers in violation of that rule, but the newspaper blamed inconsistent laws, incomplete background checks and failure to enforce the law for most incidents.

Like almost everyone in Florida, people who have committed crimes need to earn a living. But access to employment is especially important for people who are struggling to overcome a criminal past, because financial stress can push them into habits they’re trying to overcome. The deck is already stacked against ex-felons looking for jobs, thanks to their time away from the workforce and prejudice from prospective employers. The state of Florida should absolutely protect the vulnerable people under the supervision of state-licensed caregivers, but it shouldn’t erect more obstacles in their way unless those obstacles serve the goal of public safety. Some of the suggestions in the AP article do that -- but others would just penalize people who have already served their time. As a Fort Lauderdale criminal defense attorney, I believe society as a whole benefits when ex-offenders don’t face unreasonable barriers to employment and reintegration into society.

November 2, 2009

Sex Offender Asks for More Prison Time to Avoid Homelessness Caused by Residency Requirement

As you may be able to see from this blog, I keep a close eye on issues related to sex offender residency requirements, as part of my work as a Fort Lauderdale sex offender criminal defense attorney. The state of Florida requires registered sex offenders to live more than 1,000 feet away from schools and other places where children gather. In Miami-Dade and Broward County, that restricted is extended to 2,500 feet. Thanks to the colony of homeless offenders living under the Julia Tuttle Causeway colony, and the lawsuits surrounding it, the issue is getting some welcome attention here in South Florida. Most recently, on Oct. 29, the South Florida Sun-Sentinel ran a piece that shows just how desperate the restrictive laws in Broward County have made some offenders: At least two have asked for more jail time because they cannot find places to live.

The article focused on Raphael Marquez, 38, who served seven years in prison for sexual battery on a minor. Marquez was scheduled to be released in June, but requested and received more jail time instead of house arrest. He was again scheduled to be released last week to serve 18 years of probation -- but asked a Broward County judge for yet more prison time rather than the probation. The public defender representing Marquez said he has no family and no residence in Florida, which he cannot leave during probation; he expected to be homeless after his release. Because of the residency restrictions in Broward County and its cities, the closest facilities for homeless sex offenders are in Pahokee and Fort Myers, both far to the north -- and with no job, he can’t afford to pay deposits at those. The judge said he had no authority to imprison Marquez, but said he was disturbed to essentially throw someone onto the streets.

The failed request by Marquez shortly followed a request the week before from registered sex offender Cory Lewis. Lewis has a home in Fort Lauderdale, but cannot live there because of residency restrictions. He asked for more prison time in lieu of house arrest, but the judge refused and gave him 90 days to find a new home. That time extension is important for people on probation, because one offense, including a residency violation, means even more legal trouble. The judge in the Marquez case was critical of the residency requirement, reportedly saying that “The Legislature has got to realize we're digging ourselves into a hole and it's only going to get deeper, and deeper, and deeper.”

As a South Florida sex offender registration defense lawyer, I agree completely. State and local legislators have created a situation that forces offenders into homelessness even when officials have not actually told them to live under a bridge, as reportedly happened with the Julia Tuttle Causeway colony. As the public defender for Marquez pointed out, the situation is inhumane to offenders and unsafe for the public, because it’s much harder to keep track of offenders like Marquez when they have no permanent address. In fact, because keeping tabs on offenders is the entire point of registration requirements, residency restrictions that push offenders into homelessness actually undermine them.

As a Miami sex offender residency violation defense attorney, I understand that nobody wants offenders near children. But when a law doesn’t protect the public and raises serious questions about offenders’ rights, it’s time to reconsider that law. Forcing people by circumstance into homelessness is not just an inhumane situation; it can also create difficulties for offenders who are trying to get jobs and take other steps toward a better life. No matter how you feel about residency requirements, it’s easy to agree that that’s a goal worth supporting.

October 12, 2009

Trend Toward Online Mug Shot Publication Implicates Innocent as Well as Guilty

If you have read a Florida newspaper online recently, you may have noticed that several of them have started to publish “mug shots” of people who were arrested in the region. As a South Florida cyber crime criminal defense attorney, I have my doubts about this practice, and an Oct. 3 column from Carl Hiaasen at the Miami Herald does a good job of explaining why. Hiaasen wrote that newspapers are seeing an influx of revenue from publishing the mug shots, which is much needed in the struggling newspaper industry. But by publishing booking photos, rather than waiting for a conviction, he wrote, the newspapers are undermining an important tenet of American justice: the right to be presumed innocent until proven guilty.

As Hiaasen noted, not everyone who gets arrested and booked into jail is actually guilty, but the practice of publishing mug shots obscures that fact. An embarrassing mug shot implies guilt, particularly to viewers who aren’t familiar with the criminal justice system. However, if someone who was booked and published is later acquitted or has the charges dropped, he wrote, the newspaper is unlikely to publish it unless the person or the case has a high profile. And in the meantime, everyone with an Internet connection can see the photo, including the accused person’s boss, family, friends and neighbors. In addition to being embarrassing, this could have real, irreversible consequences like losing a job. As Hiaasen said, “the innocent are basically screwed.” While the practice is national, it’s especially widespread here in Florida thanks to open records laws.

Hiaasen’s column came on the heels of a Time magazine article on the same subject. As an example of the problem, that article used the story of a young woman from Tampa who was pulled over for a minor traffic violation. Once she handed over her license, she discovered that her driver’s license had expired, making her guilty of a misdemeanor. She renewed the license the very next day -- but her booking photo had already made it onto TampaBay.com. She said she was upset to be displayed next to alleged drug traffickers and drunk drivers, and concerned that her boss would see the photo. Both Time and the Herald noted that FM radio DJs have already taken to using the mug shots as fodder for morning drive-time comedy as well.

As a Miami cyber crime criminal defense attorney, I strongly agree that publishing mug shots is irresponsibly close to taking away the right to be presumed innocent until proven guilty -- a cornerstone of our legal system that serves as a safeguard against government overreaching. In fact, I believe they could even put people accused of certain crimes in danger. Registered sex offenders, who have been convicted, have been murdered and targeted for vigilante justice multiple times, including incidents in Maine, California and New York. It only takes one neighbor who recognizes the person in a mug shot to carry out an attack here in Florida as well. This is on top of the less violent but nonetheless life-changing consequences of public humiliation for the defendant, such as loss of jobs, friendships and opportunities -- all long before any conviction in a court of law.

The right to be presumed innocent until proven guilty is one of the oldest and most important parts of our legal system, acting as a check on the government’s power to imprison its citizens. As a Fort Lauderdale cyber crime criminal defense attorney, I can assure you that it’s also very important to my clients -- the people who our system was designed to protect. Newspapers have a First Amendment right to publish mug shots. But as Hiaasen wrote, it’s not exactly journalism and encourages people to draw false conclusions, bringing it perilously close to a conviction in the “court of pubic opinion.”

September 21, 2009

After Flood of Voluntary Disclosures, IRS Extends Deadline for Taxpayers to Reveal Overseas Income

As a South Florida tax evasion criminal defense lawyer, I was surprised and pleased to see that the Internal Revenue Service has extended its voluntary disclosure program for taxpayers with unreported overseas income. The program was to have ended this Wednesday, September 23 -- but the extension adds 22 days, for a deadline of October 15. IRS officials told the Wall Street Journal Sept. 21 that the extension comes at the request of numerous tax professionals, who wanted it for clients who need extra time to enroll in the program. In fact, the article said, the program has become hugely popular, flooding tax professionals and tax attorneys with phone calls. According to the IRS, the program has more than 3,000 takers since it was announced in March, up from 88 participants in all of 2008.

The voluntary disclosure program was a response to a complicated dispute between the IRS and giant Swiss bank UBS. After discovering that UBS had actively and knowingly helped American taxpayers avoid reporting income to the IRS, the agency launched criminal and civil cases against the bank. Those cases were settled with the disclosure of names of thousands of taxpayers who may not be in compliance with the law. The IRS has promised to thoroughly investigate any names it receives, but also set up the voluntary disclosure program to allow taxpayers to come forward on their own. In doing so, taxpayers can avoid extremely high fines and back taxes -- which are often higher than the income in dispute -- and potential criminal prosecution with prison time. By contrast, voluntary disclosers are unlikely to be prosecuted and face only back taxes, interest and penalties of 5% to 60% of the unreported income.

According to the Wall Street Journal, the approach of the original Sept. 23 deadline was one reason why taxpayers have increasingly stepped forward. Another reason is that UBS has begun sending letters notifying American accountholders that it intends to disclose their names to the IRS. Because the voluntary disclosure program is not available to people who are subject of an active criminal investigation, this provides a strong motivation to confess now. An attorney also told the newspaper that many accountholders don’t have access to the disputed money at the moment anyway, another strong motivator.

As a Miami tax evasion criminal defense attorney, I strongly encourage taxpayers whose names might be revealed by UBS to take advantage of the extended deadline. In fact, because the IRS has promised, and demonstrated, that it will go after tax scofflaws using any overseas bank, I believe it may be in the best interests of taxpayers with these accounts to get their houses in order now. Tax advisors told the newspaper that taxpayers of all kinds have gotten the UBS letters, including people with relatively small accounts and people whose history doesn’t indicate intent to evade taxes. And even for taxpayers who have not gotten the letters, the voluntary disclosure process takes time; taxpayers must document their income, fill out paperwork and sometimes attend an in-person interview with the tax agency.

Smart taxpayers frequently hire a Fort Lauderdale tax evasion defense lawyer like me to make sure their rights are protected throughout the disclosure process. I can help clients identify what income they must disclose and make sure to document and disclose it properly, and represent clients in any in-person interview the IRS may request. Perhaps most importantly, I can negotiate with the agency to get the best, fairest possible penalty for my clients. The penalties imposed by the IRS do vary; penalties are generally lower for people who inherited their accounts or relied in good faith on UBS advice that has been revealed to be corrupt. However, to take advantage of the voluntary disclosure program, it’s vital to start now to avoid missing the new Oct. 15 deadline. To learn more at a free, confidential consultation, please call me from anywhere within Florida at 1-866-ARRESTED or nationwide at 1-866-685-3421, or send a message through my Web site.