Cyber Crime Lawyer Blog

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.

Continue reading "Eleventh Circuit Vacates Doctors Conviction for Dispensing Controlled Substances – U.S. v. Ignasiak" »

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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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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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.

Continue reading "Courts Must Review Public Defender Motions to Withdraw for Conflict, Florida Supreme Court Rules" »

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.

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

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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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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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.

Continue reading "Florida Supreme Court Declines to Reach Jurisdiction Claim, Ruling Challenge Is Time Barred – Carbajal 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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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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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.

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

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.

Continue reading "FBI Report Shows Rise in Insurance Fraud and Other Nonviolent Crime Among Street Gangs" »

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.

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

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.

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

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.

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

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.

Continue reading "Prosecutors Decline to Retry Mortgage Fraud Defendants Whose Trial Ended With Hung Jury" »

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" »

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.

Continue reading "Chart Shows Marijuana Is Cheap in Florida Despite High Maximum Possession Sentence" »

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).

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.

Continue reading "New Immigration Enforcement Leads to 2,900 Arrests of Immigrants With Serious Criminal Charges" »

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. " »

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" »

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" »

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" »

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.

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

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.

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

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.

Continue reading "South Florida Immigrants Should Be Careful After Immigration Enforcement Announcement" »

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.

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.

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

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.

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

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.

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

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.

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

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).

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

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.

Continue reading "Florida High Court Reinstates Conviction Based on Disputed Evidence – State v. Hankerson" »

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.

Continue reading "Florida Criminal Defense Attorney on Casey Anthony Verdict – State v. Anthony" »

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.

Continue reading "Florida Supreme Court Reduces Sentence Under Habitual Felony Offender Law – Mapp v. State" »

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.

Continue reading "Colts Player and Former Hurricane Arrested in Fort Myers for Possession of Marijuana" »

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.

Continue reading "Illinois Seeks to Extradite Man Convicted of Vehicular Homicide of British Businessmen" »

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.

Continue reading "Police Shootings and Alleged Civil Rights Violations Mar Urban Beach Weekend" »

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.

Continue reading "Chicago Bears Player Arrested for Theft and Assault After South Beach Nightclub Fight" »

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.

Continue reading "Miami-Dade Prosecutors Announce DUI Diversion Program for First-Time Offenders" »

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.

Continue reading "Surveillance Video and New Information on Accuser Could Change FIU Rape Case" »

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.

Continue reading "Family Members Convicted for Trying to Stop Tasering of Man With Heart Problem" »

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.

Continue reading "Wife of Dolphins Player Brandon Marshall Jailed for Allegedly Stabbing Him in the Gut" »

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.

Continue reading "Police May Not Use Drug-Sniffing Dogs to Randomly Check Homes, High Court Rules" »

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.

Continue reading "Mother of Miami Heat Star LeBron James Arrested for Battery and Disorderly Conduct" »

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.

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.

Continue reading "Woman Charged with DUI After Leaving Coconut Grove Jogger in Critical Condition" »

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.

Continue reading "Fort Lauderdale Man Accused of DUI Manslaughter of Miami Heat Cheerleader" »

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.

Continue reading "Miami Beach Police Officer Serving Time for Pot Cleared in 2009 Shooting of Tourist" »

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.

Continue reading "Miami Woman Charged With Resisting Arrest Claims Police Pushed and Threw Her " »

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.

Continue reading "Former Gators Safety Begins Serving Jail Sentence for Assault and Probation Violation" »

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.

Continue reading "Red Light Cameras Losing Popularity in South Florida as Broward Encounters Problems" »

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.

Continue reading "Former Miami Dolphin Arrested for Second DUI After Causing Minor Accident" »

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.

Continue reading "Plantation Teenager Arrested for Sharing Marijuana Infused Cookies With Classmates" »

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.

Continue reading "Flawed Technology Allows Challenges to Majority of Tickets From Red Light Cameras" »

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.

Continue reading "Prosecutors Drop DUI Case Against South Beach Nightlife Promoter Michael Capponi" »

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.

Continue reading "Judge in Miami Prostitution Case Rules Defense May Have Limited Access to Client List" »

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.

Continue reading "Lowered Standards for Identification of Fingerprints" »

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.

Continue reading "Suspect Admits to Drinking and Driving on Suspended License in Fatal Hit-and-Run" »

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.

Continue reading "Former University of Miami Baseball Player Charged With DUI and Probation Violation" »

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.

Continue reading "Seltzer Law, P.A. Fights for Clients’ Right to Change Pleas and Stay in the United States" »

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.

Continue reading "Man in Halloween Night Police Beating Video Pleads Not Guilty to Resisting Arrest" »

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.

Continue reading "Miami Beach Police Officer Sentenced for Drunk Driving Injury Crash" »

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.”

Continue reading "When Accused of Any Crime, Remember You Have the Right to Remain Silent" »

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 co la Licensiada Sasha Berdeguer, llame al 305-444-1565 begin_of_the_skype_highlighting              305-444-1565      end_of_the_skype_highlighting o 888-THE DEFENSE (888) 843-3333.

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. " »

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 305-444-1565. For more information on child pornography or the firm, please visit our website.

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.

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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.”

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.

If you thought the government wasn't taking tax evasion matters seriously before, think again. Former UBS banker who COOPERATED with the US government and the IRS got sentenced today to40 months in prison . The IRS is not taking these matters lying down and are searching for anyone involved in hiding money from Uncle Sam. As Miami Criminal Defense Tax Evasion Lawyers, we are experienced in international banking matters.

Not much need be said as this UBS saga continues to play out. The only thing people need to know is that if you qualify as an individual who may be the target of an IRS tax evasion investigation, there is no time to delay. Call today for your FREE consultation. The number is easy 1-866 ARRESTED (within Florida), or 866-685-3421 (nationwide).

UBS Criminal Defense Attorney's represent individuals being investigated and/or charged with tax evasion. In light of the pending settlement between the United States government and the UBS Swiss Bank, the IRS is receiving 4,450 accounts, which at one time held approximately $18 billion in assets. As a Miami Tax Evasion UBS Criminal Defense Lawyer, this is not the end to this saga. Aside from UBS, the US government is seeking any individuals who may have or currently are hiding assets offshore.

The US government's so-called new voluntary disclosure program is not as new as most believe. For a long time the IRS allowed and continues to allow individuals to resolve tax issues anonymously. If you or anyone you know currently has IRS and/or tax evasion issues and would like a FREE consultation from experienced tax evasion criminal defense attorneys, don't delay call today 24/7 1-866-ARRESTED.

As a Miami tax evasion criminal defense lawyer, I have been following the federal government’s lawsuit against Swiss bank UBS with great interest. The IRS reached a settlement last week in its lawsuit seeking to force UBS to disclose information on 52,000 American taxpayers who may be hiding assets at the bank. The case grew out of an earlier criminal investigation of UBS, which the banking giant settled by agreeing to disclose a smaller list of names of customers it believed may be guilty of breaking U.S. tax laws. Three of the people on that smaller list have already pleaded guilty in IRS prosecutions, and Bloomberg News reported Aug. 15 that a fourth taxpayer has pleaded guilty to failing to disclose his UBS account.

According to the article, this newest defendant is John McCarthy of Malibu, California, a businessman and UBS client. He reportedly reached a plea agreement with prosecutors, in which he will plead guilty to a charge of failing to file a document disclosing the account’s existence. The article said the account was in the name of COGS Enterprises Ltd., a Hong Kong company that UBS bankers reportedly told McCarthy to set up to hide his identity. McCarthy is accused of transferring profits from a U.S. business into the COGS account in Switzerland, then moving it to another Swiss account to continue hiding it from U.S. tax authorities. The plea deal also requires him to pay a penalty of 50% of the highest value of the COGS account since 2003, and to cooperate with tax authorities.

Given the amounts typically stored in these accounts, that could be a very high penalty. But as a Fort Lauderdale tax evasion criminal defense attorney, I know McCarthy could have faced much more severe penalties if he had not cooperated. People charged with tax evasion -- the likely charge for hiding assets -- face up to five years in prison in addition to back taxes, interest and penalties of up to $100,000 or 50% of the account’s value. Those are for each year in which the account was not disclosed, so taxpayers with five years of undisclosed accounts could face up to 25 years in prison and fines worth more than the account itself. Thanks to the settlement in the larger case, the names of 52,000 more UBS clients could be disclosed to the IRS -- and all of them could face the same steep penalties.

As I have written here before, however, the IRS has already started a program offering lenience to taxpayers who admit the existence of taxable income they haven’t yet declared. Under the voluntary disclosure program, which ends this Sept. 23, taxpayers can receive substantially reduced penalties in exchange for disclosing their overseas accounts and paying back taxes and interest on that income. According to the Associated Press, taxpayers with undeclared income in UBS accounts have been scrambling to take advantage of this program before the bank turns over their names -- which would end their opportunity to participate -- or the end of the program. In fact, the AP reported that taxpayers are coming forward in huge numbers, with one week in July seeing more than 400% more disclosures than all of 2008.

Taxpayers do not need a South Florida tax evasion criminal defense attorney to make this disclosure -- but it’s strongly recommended, especially since the IRS reportedly conducts in-person interviews with many of the voluntary disclosers. I am proud to say that I represent clients who come forward under this program, helping them prove their eligibility, sort out what information must be disclosed and get the best and fairest possible deal with the IRS. According to the AP article, UBS officials reportedly openly advised their clients to take actions that violated U.S. tax laws; many clients may have relied in good faith on this advice, only to later discover that they were breaking the law. As a Miami-Dade tax evasion criminal defense lawyer, my goal is to make sure a voluntary disclosure does not expose them to harsh financial or criminal penalties for what may be a misunderstanding -- and ultimately leaves them better off than they would be in a criminal prosecution.

Continue reading "Fourth UBS Client Pleads Guilty to Tax Crimes as Bank Reaches Legal Settlement With IRS" »

Florida has been hit hard by the housing bust, with the third-largest rate of foreclosures in the nation and plummeting housing prices. And according to an Aug. 4 article in the South Florida Sun-Sentinel, federal government efforts to encourage loan modifications have fallen flat, with fewer than 9% of eligible loans modified under the federal Making Home Affordable program and 15% of eligible homeowners receiving an offer of a loan modification. Troubled homeowners trying to take advantage of the program report getting the “runaround” from their banks, with their phone calls ignored, endlessly transferred or even hung up on; paperwork lost one or more times; incorrect information or denials from lenders; and months of delay, during which foreclosure proceedings continue.

In response, I am pleased to announce that I offer foreclosure defense services to homeowners throughout Florida, both from my own Miami office and through my seven-office law firm, Balliro, Galasso, Leskovich & Seltzer. Our Fort Lauderdale foreclosure defense lawyers can get the bank’s attention, even if the homeowner has been trying unsuccessfully for months, precisely because we are lawyers. If necessary, we will file a Florida foreclosure prevention lawsuit right away to stop the foreclosure process, giving clients time to negotiate a real, sustainable loan workout or decide on another plan that minimizes the damage to their financial lives and their families.

For months now, our Miami foreclosure defense attorneys have followed story after story in the media from homeowners whose efforts to help themselves have been ignored by their loan servicers. A New York Times article from June detailed the misadventures of one loan modification company employee who was told to submit documents a fourth time after the bank lost her first three submissions. A colleague down the hall was later hung up on when he tried to get to the bottom of a similar problem. Another article in the Florida Times-Union detailed the struggles of a Jacksonville homeowner who waited months for a loan modification, only to be denied because of the kind of loan she had -- something the bank knew about from Day One. A real estate professional quoted in that article alleged that lenders prefer to allow foreclosures because it’s better for their bottom lines than setting up a payment plan.

I believe my status as a South Florida foreclosure defense lawyer can cut through this red tape. No reputable attorney or loan modification company will guarantee a successful loan modification -- but because banks know attorneys will sue to protect their clients’ rights, they tend to pay attention. In fact, we review every new client’s loan history for evidence of illegal predatory lending practices, such as writing loan terms into a contract when they were not discussed in verbal negotiations. Predatory lending is a particularly big problem among people with subprime or exotic loans, including adjustable-rate loans, as well as with borrowers whose first language is not English. We will sue to invalidate any loan that evidence shows was originated under illegal or questionable circumstances, stopping foreclosure right away in many cases.

Unlike banks motivated by profit -- or the need to at least appear profitable -- an Orlando foreclosure defense attorney is an advocate who is explicitly on your side. That’s extremely important when you’re up against a large bank or loan servicer with millions in profits and a small army of lawyers. I can promise that I will work my hardest to keep my clients out of foreclosure and secure a loan modification that actually lowers their mortgage payments, for good.

As a Miami sex offender registration violations defense attorney, I was pleased to see a recent piece in the Miami Herald about some of the unintended consequences of our punitive sex offender registration laws. As Miamians may know, Florida places very strict restrictions on where registered sex offenders may live -- they cannot live within 1,000 feet of any place where children congregate. Miami-Dade has an even stricter law that requires offenders to live at least 2,500 feet away from any place where children congregate. As a result, a group of sex offenders with no place else to go have taken up residence under the Julia Tuttle Causeway bridge, sparking a lawsuit from the ACLU arguing that the county law has essentially forced these people into homelessness and made it harder for police to keep track of them.

According to a July 24 article from the Miami Herald, the state of Iowa faced a similar problem until recently. Its state law, passed in 2005, kept sex offenders at least 2,000 feet from schools and day-care centers. As in Florida, this had the unintended consequence of making it very difficult for offenders to find a legal home, driving some into homelessness and others to disappear. However, unlike in Florida, the Iowa legislature has found a solution. Iowa’s recent amendment to its sex offender laws creates three tiers of sex offender, allowing people convicted of the least serious crimes to live anywhere and requiring those convicted of the most serious crimes to keep to the 2,000-foot limit. Similar efforts in Florida have failed, at least once because of opposition from Miami-Dade legislators.

As a South Florida sex offender registration violations criminal defense lawyer, I’m pleased to see attention paid to this issue. These restrictions are in place to keep us safe from sexual predators who might offend again. However, if this law drives offenders to flee or become homeless, it impedes law enforcement’s ability to track these offenders -- paradoxically creating a situation that could make us less safe. It is also an unnecessarily punitive law, particularly because these offenders have already done their time and been released.

No politician wants to be seen as soft on child molesters -- even when common sense tells them the current situation isn’t working. That’s why the political willpower mustered in Iowa is so impressive to this Fort Lauderdale sex offender registration criminal defense attorney. As one state senator observes in the article, Florida has different problems and demographics from those in Iowa. But when the problem is similar, it only makes sense to consider a similar solution, even if it takes some political courage.

I am happy to announce a new service I offer for property owners in Miami-Dade and Broward Counties: representation for homeowners seeking to challenge the assessment of their property values, and thus their property taxes. I saw a need for this kind of representation after months of reading about the difficulties facing South Florida property owners, who are facing a probable property tax hike, plummeting home values and the same financial difficulties faced by everyone else in this bad economy.

Property values are determined by a county assessor, who looks at sales prices for the property and similar properties in the year before the beginning of the current tax year. For this year’s property assessments, that means assessors are looking at property sales between Jan. 1, 2008 and Jan. 1, 2009 to determine fair market value as of Jan. 1, 2009. That works fine in an ordinary real estate market -- but this is not an ordinary market. Property values have plummeted in the past year or two, with foreclosures and short sales flooding the market and depressing prices for ordinary home sales. An assessment based on prices in early 2008 may no longer be accurate.

At the same time, homeowners are being financially squeezed in other ways. For one thing, the drop in property values means many are “underwater” or have lost equity in their homes, making it hard to refinance or sell. For another, South Florida currently has an unemployment rate around 10%, and people who do have jobs are seeing reductions in their hours, pay or customers. On top of all this, both Broward and Miami-Dade are proposing a slight increase in property taxes, to close the expected gap in revenue brought on by the drop in property values. Some cities are also raising taxes. Under these circumstances, many homeowners simply can’t afford to let an incorrect assessment stand if it means a substantial increase in property taxes.

Preliminary assessments are already out in both Miami-Dade and Broward, and they will be formally mailed in August. Homeowners who believe the assessed values of their properties are incorrect can file an appeal, to try to have the assessment changed by the November mailing of the final tax bills. That’s where I can step in, as a South Florida property tax assessment appeal attorney.

Appeals of property valuations are heard by a Value Adjustment Board, an administrative body convened by the county. You are free to have a Miami property tax assessment appeal lawyer represent you at this hearing -- and as with many other legal proceedings, it’s a good idea. For one thing, the law explicitly stacks the deck against homeowners by presuming the county’s assessment is correct, which means the burden of proof is on you. For another, if you lose your hearing and wish to appeal it, your next step is to file a lawsuit in civil court. And the deadlines for all of this paperwork are very short -- for example, you have just 25 days from the mailing of your appraisal to appeal it in Miami-Dade. Hiring a Fort Lauderdale property tax assessment appeal lawyer can prevent you from missing those deadlines and losing your right to contest a bad appraisal.

In exchange for this service, my office will charge a percentage of the savings we win for you. As with all of our fees, I will explain this in advance and give you a chance to ask any questions you might have. I believe this service could be extremely valuable for homeowners who receive tax bills based on property values that were accurate 18 months ago but are overly optimistic now. For families who are already struggling financially, an inaccurate property tax bill is just another blow they don’t need.

Think before your text, that is the message we need to be sending our kids. The Sexting Revolution continues to haunt our kids and there is no end in sight. I guess this what we get for giving our kids camera phones. Ultimately who is to blame? Are the courts the best way to deal with this problem? There is an ongoing list of questions that can be posed when it comes to this topic, but the end results is usually the same: kidson criminal probation for being kids; which in turn can lead to a criminal record and problems in the future.

As a Fort Lauderdale Cyber Crime and Criminal Defense Lawyer, I see this problem everyday. Cyber crime both those with sexual content and non-sexual content are plaguing society. Cyber stalking is on the rise, and sexting is here to stay. The final question at the end of all this is, will the State (prosecutor) do the right thing or use the minor as a stepping stone?

Recently a teen in Melbourne, Florida received probation for forwarding sexually explicit photos. This was charged as some serious felonies, but plead down for resolution purposes. But again, I have to ask the question, where's the crime, and what does this resolution serve? Minors sending pictures of minors, and then being charged criminally. This is NOT what the legislature had in mind when they drafted this legislation. Until the legislature amends the laws, this will be debated.

If you or anyone you know needs the assistance of a former cyber crime prosecutor turned criminal defense lawyer in Florida, call 24/7 for a free consultation.

Patience pays off...sometimes, but with police agencies actively seeking out those soliciting minors, the agents investigating have all the time in the world. Police around the State and country are growing more patient in developing their suspects. No longer do law enforcement agencies look to net the "quick fix big fish," rather they have started "stalking" their subjects. What that means is they are digging into the backgrounds of their targets and learning everything they can before they make their arrest. They will have several chats, sometimes over a period of months until they finally make an arrest.

Recently in Miami Dade County a life guard was arrested and charged with solicitation of a minor online by the Broward Sheriff's office. BSO had been tracking and following him for months as they built their case. This was a combined effort with international ties, which ultimately led to his arrest. That is what makes this case a little more interesting than most. There are several issues that can arise when dealing with international cases, the evidence they bring and methods that may or may not lead to its introduction in a United States Court of law.

Allegations are all that has been made at this time, and everyone is presumed innocent until proven guilty. As a cyber crime defense attorney, there are many avenues that can be taken in order to successfully win and defend against the crime of online solicitation. If you or a loved one are facing charges, cyber crime or otherwise, don't delay call David Seltzer, Miami Dade Cyber Crime Criminal Defense Attorney for a free consultation 24/7. Your freedom and restoration of civil rights is our number one goal!

Miami Court Delays UBS Lawsuit Hearing in Hope of Settlement in Tax Evasion Case

A federal judge in Miami-Dade County agreed July 13 to postpone a hearing in the hotly contested UBS lawsuit, the New York Times reported July 13. A new hearing was scheduled for Aug. 3 in the case brought against Swiss bank UBS by the U.S. Internal Revenue Service. The IRS is suing for the names of 52,000 Americans who have accounts with UBS, which admitted in a separate criminal case that it knowingly and intentionally helped Americans hide income from the IRS. UBS paid $780 million to the federal government to settle the criminal charges, but the IRS has threatened to indict the bank after all if it doesn’t get the names. This has created a quiet diplomatic showdown, with UBS complaining that it would violate Swiss law if it did what the IRS requests.

UBS has already turned over around 300 names of Americans who used its services to commit tax fraud. In anticipation of the revelation of 52,000 more, the IRS in March announced a six-month voluntary disclosure program. In this program, people with accounts at UBS are encouraged to come forward and declare any previously undeclared income. These taxpayers will still have to pay back taxes and a penalty, but they will not be prosecuted and will not be liable for the full amount of fines they might otherwise have faced. Without the voluntary disclosure, they face up to five years in prison for each tax evasion count, plus steep fines and potential loss of money and property. At least three Floridians -- two bankers and a Boca Raton man -- have already been criminally charged in the UBS matter.

As I wrote last month, many UBS clients have already sought representation from South Florida tax evasion criminal defense lawyers to help them get the best deal they can and avoid unnecessary risk as they come forward. While I am sure that some of these clients knew they were breaking the law by hiding their assets with UBS, published reports suggest that many others truly didn’t realize they had to pay taxes on their UBS accounts. One report said many UBS account holders in South Florida are children or grandchildren of Holocaust survivors who inherited the Swiss accounts and simply kept on doing what their relatives had done, trusting that their bank wouldn’t do anything illegal. As a Fort Lauderdale tax evasion criminal defense attorney, I believe prison and asset forfeiture are deeply inappropriate for such people.

I am proud to say that I represent clients in South Florida who need the help of a Miami tax evasion criminal defense lawyer to take part in the IRS voluntary disclosure plan. Finding, documenting and paying back taxes and fines can be complicated and sometimes frightening -- but waiting until the government comes after you can make the situation considerably worse. My job as a South Florida tax fraud criminal defense lawyer is to negotiate aggressively on clients’ behalf with federal prosecutors, to ensure that justice is done and get a fair settlement that leaves them with a clean criminal record.

Due to the increasing cyber crime issues arising around the world, I have decided to start informing my readers of the various cyber conferences that will be taking place around the globe. Please check out the ICCyber.org conference in Brazil.

For travel information please visit:

David Seltzer is a Miami based criminal cyber crime defense attorney. For a free consultation 24/7, please contact him today.

This post was contributed by Kimberly Peterson, who writes about the criminal justice degree online. She welcomes your feedback at KimPeterson2006@gmail.com.

Retail store employees have to deal with a lot from the general public these days: incessant questions about sales, customers who constantly throw merchandise around the store, and the every-so-often angry customer. More and more frequently, customers have been causing scenes in retail stores when returning merchandise because they do not have the credit card they originally did the transaction on. (You typically cannot return merchandise to retail stores without the original form of payment.) “Why don’t you keep that stuff on record?” retorts the irritated customer. Unbeknownst to customers, stores have drastically upped their security measures, including protecting credit card information, to better serve the public. What these customers have yet to understand is that these measures are put into place so that their credit card numbers are not stolen; if every store kept their 16 digit credit card number on record, don’t you think that would be a bit risky?

The past decade has seen a flurry of crime committed through the internet world, with the advent of online banking, as well as increased online spending. It is difficult to determine how safely guarded your credit information can be when send via websites, and the best you can do when making an online purchase is hope for the best or do your research. Retail stores in malls have similar problems since their information is now transmitted over the internet and their servers. Many stores kept records of credit card numbers on store copies of receipts until recently when this became a liability for the customer. High profile cases wherein someone hacked into stores’ servers became major headlines and many stores did all they could to change their systems in an effort to save their client relations. It thus became important to question which store was safe to shop in. Identity fraud is a common crime to commit in modern society because of the ease with which hackers can maneuver their way into various systems that keep records of your credit and vital information.

Retail stores have attempted to combat this new rise in crime through their new systems which can be somewhat inconvenient to customers, but have made huge attempts in curbing any type of hacking or stealing of information. TJMaxx and related stores made big headlines last August because of the theft of many of their clients’ credit card information from criminals around the world. While this does not appear to affect the credit card in any major way (parent companies cover the cost to VISA and other banks), we have seen results in smaller ways such as the rising of bank costs and related expenses, as well as higher prices in TJMaxx. It is amazing how quickly information can flow across the globe, so that criminals in Ukraine can garner information from sources in the U.S. and simply drain your credit funds. This becomes a difficult crime to combat because of its international sector, as well as a lack of a way to prevent this from happening. Viruses are instilled throughout the internet now so that criminals can easily steal your information from a single website; retail stores are only the beginning of the wave in crime and present an easy opportunity to take credit card numbers.

While the internet presents a large domain with which to control the amount of crime in, retail stores at least can muster up steps to combat these criminals through only displaying the last digits of a credit card. Although this may produce unpleasant customers, it is still good to know that most stores still keep the safety of their customer’s bank accounts in mind.

Guest blogger Kimberly Peterson maintains the Criminal Justice Degrees Guide site. Miami-Dade cyber crime criminal defense attorney David Seltzer represents people accused of credit card fraud, both online and offline. If you or someone you love has been charged with credit card fraud in South Florida, you should contact a South Florida credit card fraud criminal defense lawyer as soon as possible, to minimize the negative effects on your family, your money and your life. To set up a free consultation with David S. Seltzer, you can contact him online or call -866-685-3421 seven days a week and 24 hours a day.

As a Duval County Child Pornography Attorney, I found this interesting, law enforcement arrested seventy-seven (77) people on charges of child pornography this week in Tallahassee, Florida. The arrests were part of an ongoing operation dubbed "Operation Orange Tree." The individuals arrested were from all over the place including two (2) men from Lee County, Florida now faced with child pornography charges and a lifetime of penalties and problems. Other counties where individuals were arrested are Polk County, Florida, and Duval County, Florida, all relating to child pornography and children.

As a Lee County Child Pornography Attorney, what does all this mean for the 77 individuals charged? What it does not mean, and what they should not do is perceive their lives to be ruined. At this point, the state/federal authorities have made allegations of charges. No one has been convicted of anything. When dealing with cyber crime cases, it is all about the forensics and the investigation. The method's and manner in which the agencies conduct themselves is of the utmost importance. T's have to be crossed and I's dotted. Police have to be held accountable for their collection of evidence, and the following of protocols, etc.

As a former Miami-Dade Cyber Crime Prosecutor, I am familiar with all the protocols and procedures that are necessary in a proper arrest and forensic review. I have years of experience in Cyber Crime and child pornography cases both as a prosecutor and a defense attorney. As a Polk County Child Pornography Lawyer, make sure that if you are facing serious child pornography or solicitation charges, your attorney has the necessary experience and can understand and interpret the evidence. Call today for a FREE consultation 24/7 365 contact us 866-685-3421.

What do you do when you are not satisfied with your pizza? Whatever it is, it doesn't usually lead to getting arrested and charged with a criminal act. That is what happened to current prosecutor David Ranck. Mr. Ranck got into an altercation after his pizza was not delivered and he struck the pizza delivery lady. Mr. Ranck is now charge with battery and is facing criminal charges in Miami. (Miami-Dade prosecutor charged with punching pizza delivery woman). The punishment for battery, if convicted is up to 1 year in the county jail.

Battery is the unwanted touching of another. The "touching" need only be that, a touch. It does not require any force, solely that it be unwanted. For more information on battery or any other criminal matter, contact David Seltzer, Miami Criminal Defense Attorney 24/7 for a FREE consultation.

In Lee County Florida today, two men where arrested and charged with possession of child pornography.

Fort Myers Cyber Crime and Child Pornography Criminal Defense Lawyer, Free Consultation 24/7. Remember, it is all in the forensics...Cape Coral Child Pornography Criminal Defense Attorney.

David Seltzer, Cyber Crime Defense Lawyer at Balliro, Galasso, Leskovich & Seltzer, LLP, focuses on cyber crime defense.

President Obama today released his new cyber crime policy. Please see link below:

Cyberspace Policy Review: Assuring a Trusted and Resilient Information and Communications Infrastructure. No surprise cyber crime is on the rise. Obama's administration has indicated that cyber crime is a top priority. With the release of the new policies, let's see what transpires...

Polk County sheriffs office charged 45 people with possession of child pornography. This has been an ongoing investigation lasting over one (1) year.

45 Charged in Florida Child Pornography Sting

David Seltzer, former Miami Dade State Attorney Cyber Crime Prosecutor, is available 24/7 for free consultations. Now practicing Cyber Crime Defense Law, child porn/child pornography cases are being prosecuted in every jurisdiction in the United States. Your freedom and liberties are at stake, call for a free consultation with David Seltzer, Polk County Child Porn Criminal Defense Attorney.

Randy Starks, a defensive lineman for the Miami Dolphins, was arrested for aggravated battery on a police officer, the South Florida Sun-Sentinel reported May 24. Starks is accused of hitting the officer with his vehicle at a slow speed, in bumper-to-bumper traffic on a Saturday night in South Beach. He was also charged with a misdemeanor related to his truck’s license plate, which was not registered to that truck. No allegations related to drugs or alcohol were reported.

The newspaper said Starks was driving through South Beach just after midnight on Sunday when the officer approached his truck. The truck was designed for four people, but according to the article, it had thirteen inside, including a woman on Starks’ lap. The officer waded into bumper-to-bumper traffic and knocked on the driver’s side rear window, but the truck kept moving forward. When the officer knocked again, the truck did stop, allowing the officer to approach. But as he reached the driver’s door, the truck accelerated slightly, hitting the officer in the chest and knocking him into another vehicle.

Because this case involves a pro athlete, it’s attracting a lot of attention from both fans and the media. As a South Florida battery criminal defense attorney, I would like to clear up some of the misconceptions I’ve noticed. For example, the aggravated battery charge. If you’ve never worked in criminal law or been arrested before, you may not realize this, but battery is defined as any intentional, unwanted touching or intentionally causing bodily harm. That’s it. To be charged with battery, you do not need to cause great bodily harm or even hurt the other person. A charge of aggravated battery requires great bodily harm or use of a deadly weapon -- which could include a car.

Furthermore, under Florida law, any battery on a police officer is automatically treated more seriously -- from a second-degree felony to a first-degree felony, in the case of aggravated battery. So, assuming the incident happened as it was reported, the charges against Starks are perfectly legally sound. That said, the penalty for a first-degree felony is up to 30 years in prison, which seems disproportionate to the crime to this Fort Lauderdale battery criminal defense attorney. Judging by the description, Starks made some mistakes, but he may not have even intended to harm the officer. Given that he was apparently driving with someone on his lap, the swerve may not have been intentional -- a prerequisite for a battery charge. That’s just one of the possible avenues of defense I can see from reading the article.

Finally, as a Miami-Dade battery criminal defense lawyer, I’d like to add that high-profile athletes and celebrities should be given the same benefit of the doubt everyone accused of a crime should get -- presumed innocent until proven guilty. Celebrities and the wealthy attract a lot of criticism after an arrest, but when they face the justice system, each one is just an individual -- and just like everyone else, they need the help of a smart criminal defense attorney.

The Miami Herald reported May 15 that three Miami-Dade men have been arrested for allegedly bilking Medicare out of $22.7 million. Two of them, Michel De Jesus Huarte and Ramon Fonseca, ran medical clinics in five states, including Florida, which they are accused of using to defraud Medicare. Another defendant, Vicente Gonzalez, is accused with the first two of conspiracy and money laundering. A fourth suspect is still at large. All of them face fines, repayment and up to five years in prison for each count of fraud.

According to the article, the clinic operators are accused of billing Medicare for expensive HIV and cancer-treatment procedures they did not perform. In fact, an FBI investigation found that several “patients” knew nothing about the clinics they were supposed to have visited for the procedures. Another died before the procedure was allegedly performed, and two of the clinics involved did not seem to exist except as post office boxes. Once they received Medicare reimbursements, the Herald said, the conspirators would deposit them at storefront check-cashing businesses and take weekly deliveries of hundreds of thousands of dollars in cash.

As a Miami fraud criminal defense attorney, I was interested in this news because Medicare fraud may be the most common type of fraud against the federal government. And law enforcement says the three counties closest to us -- Miami-Dade, Palm Beach and Broward -- are among the top counties nationwide for Medicare fraud. In fact, the Florida Legislature just passed a law increasing penalties for defrauding the state Medicaid program. And Florida congressmen have been the driving force behind similar efforts to strengthen the federal anti-fraud law that the conspirators in this case have violated. With the economy in bad shape and government agencies looking for ways to trim fat painlessly, South Florida Medicare providers would be well-advised to expect further crackdowns.

As a Fort Lauderdale fraud criminal defense lawyer, I wish regulators well in their efforts to root out genuine fraud, especially organized schemes to defraud like the one described in the Herald. However, I would also be concerned for the patients and doctors who may be caught up in such a crackdown. Medicare fraud schemes frequently take advantage of patients who are elderly, unwell or otherwise vulnerable to exploitation. While there are some “patients” who are part of the schemes, many others are guilty only of trusting too much. And a few doctors may be vulnerable to Medicare fraud charges as well, thanks to a prohibition on “self-referral” and the general complexity of the system.

I absolutely support efforts to root out Medicare fraud -- but not at the expense of justice. Medicare fraud is a felony on both the state and federal levels, carrying up to 30 years in prison and six-figure fines at its most serious. As a South Florida fraud criminal defense attorney, I would not want those penalties levied at defendants who are already victims themselves.

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In the past weeks, I’ve launched a series of posts about mortgage fraud, a crime that is generating substantial media attention and law enforcement action right now. As a Miami mortgage fraud criminal defense attorney, I feel that this is especially important here in Florida, where we have some of the highest rates of foreclosure and mortgage fraud in the nation. So far, I have talked about two current major categories of mortgage fraud: “foreclosure rescue” or “foreclosure prevention” scams against homeowners, and a complicated straw buyer scheme in which several people along the mortgage lending chain conspired to defraud a lender. Today, I’d like to continue discussing mortgage fraud by focusing on other mortgage fraud schemes uncovered around the United States.

Maybe most interestingly, a street gang is believed to be partly behind a large-scale mortgage fraud ring in San Diego. According to Reuters and the San Diego Union-Tribune, two dozen people were indicted for the scheme, which used inflated appraisals and straw buyers to buy 220 distressed homes for more than their asking prices, then pocketed the extra money. The lead defendants are Darnell Bell, a documented member of the Lincoln Park gang who used his gang experience to recruit and control the players, and business partner Michael Ivy, who negotiated the purchase deals. Other participants include a series of crooked real estate agents, escrow agents, appraisers, brokers and investors. The Union-Tribune said prosecutors are seeking the return of at least $11 million in the ring’s profits.

Meanwhile, in Kansas City, authorities are prosecuting a home builder and a real estate agent for their roles in a $12.6 million mortgage fraud scheme. Builder Jerry Emerick pleaded guilty to conspiring with a real estate agent to sell 25 upscale homes at inflated prices. The buyers involved received kickbacks totaling $2.3 million. Emerick admitted to submitting false documents and lying to title companies to further the scheme. It’s unclear whether the homeowners themselves lied to the lenders, but as a Fort Lauderdale mortgage fraud criminal defense lawyer, my guess is that the kickbacks mean they weren’t completely honest.

Finally, another article out of San Diego looks at an unintended consequence of the real estate bust: Homeowners lying about being laid off to get their mortgage loans modified. Because it’s difficult to get a lender to agree to a loan modification, some homeowners are falsifying documents or having colleagues lie to the lender to get a modification, short sale or deed in lieu of foreclosure approved. Others are working under the direction of crooked “foreclosure consultants” who assure them that fudging their incomes is okay. In either case, lying to a lender is still mortgage fraud, whether they’re overstating or understating their income. Even if the homeowners didn’t realize they were doing anything wrong, they could still suffer serious legal penalties.

I’m interested in these cases because they highlight the diversity of people who commit mortgage fraud -- people from desperate homeowners to suburban home builders to urban gangsters. As a South Florida mortgage fraud criminal defense attorney, I have seen all kinds of people involved in mortgage fraud scams in our state as well. But regardless of background and prior convictions, people accused of mortgage fraud need good legal help, preferably as soon as possible. With federal and state law enforcement pursuing cases of mortgage fraud more aggressively than ever, authorities could be all too happy to find a scapegoat. As a mortgage fraud criminal defense lawyer in Miami, I will work hard to ensure that none of my clients ends up in that role.

As I mentioned last week, I am writing a series of posts on mortgage fraud -- an important topic in Florida right now. In 2008, Florida was second in the nation (behind Rhode Island) in mortgage fraud, and many of our cities are experiencing very high rates of default and foreclosure. In response, organizations specializing in stopping foreclosures or modifying home loans have sprung up throughout Florida. Some of these may be legitimate -- but as the Obama Administration warned today, others are just fronts for a type of mortgage fraud perpetrated against homeowners.

Thanks to the 2008 Foreclosure Rescue Fraud Prevention Act, it’s illegal in Florida for a foreclosure consultant to demand up-front payment. But some of them do it anyway, then simply fail to help -- and that’s not the only scam. Other common schemes include persuading the homeowner to sign away ownership of the home; selling insurance for foreclosure and relocation; setting up a “refinance” deal that really transfers ownership; and signing the distressed homeowner up for unnecessary, expensive services or loans. At best, these schemes take homeowners’ money and hope without giving them anything in return. At worst, they actually steal the home and leave the victim deeper in debt than ever.

The Florida Department of Justice has promised to crack down on mortgage fraud, and as a Miami mortgage fraud criminal defense lawyer, I have been watching the news -- and I’ve already seen the results. On April 3, Jacksonville’s News 4 reported that the state sued a company called National Foreclosure Counseling Services for false advertising, charging up-front fees and then failing to perform any services. On the same day, the Orlando Business Journal said another company, Homestead Protection Services, had agreed to voluntarily dissolve and pay restitution to its customers for multiple violations of the Foreclosure Rescue Fraud Prevention Act.

These schemes are mortgage fraud, just as lying to a bank in a loan application is mortgage fraud. In fact, some of them involve lying to banks, as well as homeowners, about issues like the homeowners’ consent or knowledge, or the value of the home. As a South Florida mortgage fraud criminal defense attorney, I only expect to see more news reports like these in the next few months. If the amount of political and media attention paid to this issue is any indication, law enforcement is going after mortgage fraud in a big, big way. That means lots of headlines and big, splashy news conferences.

Most of the people charged will probably be guilty -- but I’ve been a Miami mortgage fraud criminal defense lawyer too long to think prosecutors and police never make mistakes. I hope that legitimate companies doing their best to help distressed homeowners aren’t caught up by law enforcement’s enthusiasm for punishing con artists.

David S. Seltzer, Miami Criminal Defense Attorney focused on all areas of Criminal Defense Law and Cyber Crime Defense is proud to announce his new association as of counsel to Balliro, Galasso and Leskovich, LLC. Balliro, Galasso and Leskovich is a Criminal Law Firm dedicated and focused on 100% Criminal Defense Litigation. With seven offices, Balliro, Galasso and Leskovich, and David Seltzer, PA, are focused on defending the rights, freedoms and liberties of individuals across the State, both in Federal and State Courts.

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Well as we all knew this was inevitable. The US government today made their first big arrest in prosecuting those involved in hiding money from Uncle Sam. Boca Raton accountant was arrested for allegedly hiding millions in tax dollars. As a Miami Criminal Lawyer who practices Tax Evasion, this is just the beginning. After speaking with various colleagues, both attorneys and forensic accountants alike, the United States government is going to look for its money.

The question is, is it worth it to the US government and taxpayers? Will the cost of prosecution be reflective of what they will recover? I submit to you the answer has to be NO. Generally tax issues settle for pennies on the dollar, so why will these instances be any different? With the economy heading the way it is, is this the best use of our government resources? I believe they should attempt to negotiate and resolve these matters outside court once the individuals are identified. If no resolution can be reached, then let the Courts get involved. But I do not believe that on a cost basis recovery analysis this venture will prove fruitful to Uncle Sam. Stay tuned, more to follow I grantee it...the government never goes away quietly...

Mortgage fraud is on the rise in the United States, especially in South Florida. State Attorney General Bill McCollum has even gone so far as to call the sharp rise in mortgage fraud a state of emergency. Against that backdrop, I was not surprised to see an item in today’s South Florida Business Journal reporting that 11 Miamians have been indicted for an alleged mortgage fraud scheme worth as much as $4.7 million.

The defendants, one of whom remains at large, are accused of running an elaborate scheme. Alleged ringleaders Juan Garcia and Yenisley Acosta are accused of recruiting the others to buy homes using false financial information and claiming the homes were for residential use. These buyers are called “straw buyers.” Once the home sales closed, the straw buyers would immediately sell the properties to other straw buyers at a higher cost, for a total of 13 transactions involving six properties over four years. Sale proceeds would go to the alleged ringleaders; none of the buyers made mortgage payments or even paid closing costs.

Of course, five of the six properties went into foreclosure right away. According to a press release from the U.S. Attorney’s office for the Southern District of Florida, several of the fraudulent loans in the scheme were Federal Housing Administration loans, which means they were guaranteed by the federal government. When the homes went into foreclosure, the federal Department of Housing and Urban Development had to pay back the loans, for a total loss to the government of $1.6 million. The newspaper gave the total value of the scheme as $4.7 million.

This is an elaborate example of the “straw buyer” or “for-profit” type of mortgage fraud, in which one person purchases the property on behalf of another person who would normally be ineligible. The straw buyer uses or falsifies good credit and a strong income in order to get the loan, but the real purchaser pays all of the costs of the transaction. In exchange for his or her services, the straw buyer (and anyone else involved in the scheme, such as an appraiser) gets part of the proceeds from the loan. The real purchaser pockets the remainder of the loan and walks away from the home without making any payments, sending it into default and foreclosure right away. This is one of the most common mortgage fraud schemes I’ve seen as a Miami mortgage fraud criminal defense attorney.

In this case, the alleged perpetrators actually sold the properties to new straw buyers, at inflated prices and using even larger loans, allowing them to profit more than once from the same property. Naturally, this defrauds the bank, which now has no way to collect on its investment. Indirectly, it also affects all of the honest homeowners in the area as well, because foreclosures drive down home prices and give banks a reason to tighten their credit standards even further.

As a South Florida mortgage fraud criminal defense lawyer, I expect to see more stories like this in the near future. The Cape Coral-Fort Myers area has the second most foreclosures of any U.S. city, according to recent statistics, and the rest of South Florida is affected as well. In many areas, we are also seeing an uptick in fraudulent schemes exploiting homeowners desperate to avoid foreclosure. Because this issue is so relevant, I intend to address different aspects of it from a Miami mortgage fraud criminal defense attorney’s perspective in the upcoming weeks’ blog posts.

More and more cities in South Florida and Central Florida are adding red-light cameras to their arsenal of tools to catch traffic offenders. Cities including Orlando and Apopka already have the cameras, the Orlando Sentinel said March 15, and many other municipalities are considering them, including Delray Beach, Winter Park, Tallahassee, Clermont and Kissimmee, as well as Orange County. In fact, state legislators are considering a law that would standardize how red light cameras are used. Generally, cameras are set to take a photo whenever the associated traffic light turns red, and drivers caught in the intersection are cited $75 to $500 by matching the license plate number in the picture to DMV records.

The cameras are praised by municipal officials as a cost-effective way to catch more red-light runners and reduce the number of serious accidents at intersections. As Winter Garden police chief George Brennan told the Sentinel, law enforcement believes that “cameras don’t lie.” But as a Miami criminal defense lawyer, I know it’s not so simple. For one thing, cameras do lie, in a way -- by omitting details in the scene that would change many police officers’ minds about whether the driver deserves a ticket. People who lent their cars to friends, people who made legal right turns on red and people who were trying to avoid an accident have all been cited -- and had their appeals denied.

And those objections don’t even touch the issue of possible flaws in the technology, including problems with how human beings administer it. As a Fort Lauderdale cyber crimes criminal defense attorney, I know very well that innocent people can end up criminally charged because of problems with technology, or how law enforcement uses technology. As this TV news report shows, one Albuquerque man got a ticket for turning right on a green arrow -- which didn’t show up on the video the city took, thanks to the camera’s low frame rate and low resolution. He successfully fought his ticket.

Even more importantly, there’s evidence that red light cameras actually make Florida roads less safe. In 2008, the University of South Florida brought out a study of the cameras showing that they actually increase rear-end accidents by giving drivers a reason to stop short when they reach an intersection with a camera. By contrast, accidents involving red-light runners were decreasing before the cameras became popular. Studies showing the cameras reduce accidents are generally flawed, the university’s press release said -- and funded by the auto insurance industry, which stands to profit from the cameras because more citations and accidents increase insurance premiums.

If red light cameras aren’t doing much for safety, why are Florida municipalities still considering them? One answer is that they consistently drive up revenues for the city or county that owns them. Police officers can’t be posted at every intersection -- but cameras can be. Even in a small city, this can add up to hundreds of extra dollars in fines per day. And it’s not just disgruntled drivers who see the financial motive -- a retired Florida Highway Patrol trooper told the Sentinel that cameras are “simply a revenue-generating device cloaked under the guise of public safety.”

More and more, drivers are fighting back, in part by arguing that photograph-only evidence denies them the Constitutional right to confront their accusers. I am proud to say that I am the South Florida criminal defense attorney representing one of these drivers. People who run red lights should absolutely be held responsible, but I believe red light cameras, with all their flaws, are not the right solution.

The New York Times reported today that there have been an influx of mistrials and misguided verdicts relating to juror's disregard for the law and the American system of justice as jurors are turning to the WWW for information. As a Miami Cyber Crime Defense Lawyer, I am not really sure how I feel about this. Our society is now controlled by technology, and dependent on it for our everyday lives. Is it fair to now ask people to go backwards as technology continues to move us forwards?

As a Fort Lauderdale Criminal Defense Attorney, I understand the ramifications of individuals tainting their perspective on a case with outside information. However, the real question at this point is how do we as a judiciary going to deal with it? This problem is not going to go away, and both sides always want a fair trial, but with technology in our face 24/7, is every jury from here on out going to require sequestration?

Looking at this matter on anther level, a recent NBA player was admonished for Twittering during the halftime of a recent game.

This article from the New York Times is simply the beginning of this debate. Stay tuned...

One big piece of news for football fans today is Saturday’s fatal car accident involving Cleveland Browns wide receiver Donté Stallworth. According to the Miami Herald, Stallworth hit and killed a pedestrian on MacArthur Causeway between Miami and Miami Beach at around 7 a.m. March 14. The Herald said Stallworth is cooperating with authorities. As is routine after a fatal traffic accident, law enforcement drew Stallworth’s blood to test for drug or alcohol intoxication; results are expected at the end of the week.

This video, posted online by the Herald, shows officers performing field sobriety tests on Stallworth and trying to resuscitate the victim, 59-year-old Mario Reyes. As the newspaper warned its readers, the video is "graphic" and not appropriate for everyone because it shows Reyes at the scene.

Of course, this case is attracting a lot of attention because the driver is a celebrity -- but as a Miami vehicular homicide criminal defense lawyer, I don’t see much that’s out of the ordinary right now. Around the Internet, rumor has it that prosecutors are poised to charge Stallworth with DUI manslaughter once the test results come back. This has generated a lot of anger about irresponsible football players and indulgent authorities who go easy on celebrities who drive drunk.

However, as far as I can see, no established news organization has reported that Stallworth was actually intoxicated, or appeared intoxicated at the scene. In the Miami Herald’s video, viewers can clearly see officers administering a horizontal gaze nystagmus test, in which Stallworth would have been asked to follow the officer’s penlight with his eyes. Stallworth appears calm and cooperative. None of these things are proof that he was sober, of course, but they don’t show that he was driving while intoxicated either -- and even football players are innocent until proven guilty in the United States. As a Fort Lauderdale DUI criminal defense attorney, I prefer to reserve my judgment until law enforcement releases the toxicology reports.

I know how passionate fans can be when they see players accused of -- or seeming to get away with -- serious crimes. And if there’s a crime here, it is serious. Both DUI manslaughter and vehicular homicide (which doesn’t require any alcohol involvement) are second-degree felonies in Florida carrying up to 15 years in prison and fines up to $10,000.

If Stallworth doesn’t already have a South Florida vehicular manslaughter criminal defense lawyer, he should get one as soon as possible. Manslaughter charges are serious under any circumstances, but the situation can be seriously complicated by early conviction in the “court of public opinion.” Stallworth, like everyone accused of a crime, deserves a fair trial in a court of law.

As a Miami Criminal and Cyber Crime Defense Attorney, I do what I do to help. A colleague of mine sent me the below video and it reminds us that people in life deserve second chances.

David S. Seltzer is a Miami Cybercrime and Criminal Defense Lawyer who practices throughout the State of Florida, including Miami, Fort Lauderdale, West Palm Beach, in both State and Federal Court. Please call 24/7 for your FREE confidential consultation.

In these times of financial hardship to the United States of America, the Federal Government is making tax evasion, tax avoidance, and tax mitigation a top priority. With the announcement that UBS is turning over information relating to those Americans suspected of defrauding the United States Government, criminal prosecution for Tax Evasion is rampant in our courts, and will only increase in the upcoming months. See USA Today Article IRS unlocks UBS vault hiding Americans evading taxes

As a Criminal Tax Defense Attorney, it is extremely important for those who believe they will be investigated to be prepared for the road ahead. My advice to you is to speak to an attorney concerning your rights and your position. It is time to protect your assets and your future. Call today for a free consultation 24/7 and speak directly to an experienced criminal defense tax evasion lawyer.

In a recent announcement, Myspace.com removed 90,000 registered sex offenders from its website. What is interesting to me as a Miami Criminal Defense Lawyer, is how many of those individuals removed may have been in violation of their sex offender conditions by being online? And if so, will they be prosecuted for the violation?

Usually sexual crimes involving minors committed in today's world involve restrictions on what individuals can and cannot do. In almost all circumstances I have experienced, internet usage has been severally restricted. If an individual who is a registered sexual offender or predator is on probation and requires the use of a computer to work, their freedom to surf the internet is limited. In most cases the machine is equipped with either a keystroke logger or some other form of monitoring device, which allows probation to supervise and monitor every move. Website access is limited to only those sites that the individual requires for work, once they are approved by the appropriate agency's involved.

I can imagine very few circumstances that would require an individual on sexual offender or predator probation to be using myspace.com or any other comparable social networking site, such as facebook.com. That being said, one thing we as a society need to address is, are all individuals who are forced to register as sex offenders, really sex offenders, in the sense that are they a danger to the community? And how long until the courts attempt to impose a lifelong ban on internet usage by sex offenders or predators?

In my opinion each situation must be visited on a case-by-case basis, only after a careful review and understanding of the underlying facts. Working as a Fort Lauderdale Criminal Defense Attorney, I come across all types of criminal activity and each case must be looked at in a vacuum, as no two cases are alike. Some individuals end up in situations where they are not a danger to the community, and are labeled for the rest of their life.

Case on point, as a Miami Criminal Defense Lawyer, I represent an individual who had consensual intercourse with a minor when he was barely an adult. Unfortunately, he does not qualify under the new Romeo & Juliette laws, and now with a wife and two kids, has nowhere to live since he has been evicted from his home once his landlord learned of his status. Miami Dade County told him to use the MacArthur Causeway as his registered address. Is that what we as a society have become? The city in which he lives does not truly allow sex offenders to live there. However, they are willing to look at each case on a case-by-case basis and if a court of competent jurisdiction makes a finding that the individual is not a danger to the community, then the city will allow him to continue to reside there. Just one of the many reasons why the legislature needs to take another crack at the registration statutes, because sometimes good people get caught in the crossfire.

In honor of the nationwide opening of the movie Defiance, staring Daniel Craig, and my impending nuptials to the grand niece of the Bielski Brother's here is history we cannot forget.

South Florida Criminal Defense Attorney. Miami Criminal Defense Lawyer. Fort Lauderdale Criminal Defense Attorney. Cyber Crime Defense Lawyer. Miami Cyber Crime Defense Attorney. Miami Criminal Defense Attorney.

The South Florida Sun-Sentinel reported Jan. 3 that a former teacher in Coral Springs has been jailed for having a sexual relationship with a 16-year-old student. The teacher, who is 41, is accused of having a consensual sexual relationship with the girl that lasted more than a year. In fact, both the teacher and the student had been questioned in late 2007 and early 2008 about their relationship, but both denied any impropriety. The teacher, whose South Florida criminal defense attorney wasn’t questioned by the paper, has been jailed on five counts of sexual battery.

As a Fort Lauderdale defense attorney myself, I thought this was a good example of how confusing Florida sex crime laws can be. Florida law does not exactly discuss rape; what could be charged as rape elsewhere might be called sexual battery here. That includes statutory rape -- sexual conduct with a consenting person who is nonetheless too young to legally consent. In many other states, sexual battery is unwanted sexual touching that doesn’t meet the definition of rape. Perhaps most importantly in the present case, Florida’s sexual battery law specifically prohibits sexual relationships between someone under 18 and someone who is “in a position of familial or custodial authority” over the younger person.

Furthermore, our age cutoffs are complex. In general, any sexual conduct with someone under age 15 is illegal, and any non-consensual sexual contact with someone of any age is illegal. And of course, a consensual relationship between two people age 18 or over is not a crime. However, if the younger person in a consenting relationship is 16 or 17, the conduct is legal if and only if the older person is under the age of 24. Furthermore, age is not relevant if both parties are under 16. That is, a 13-year-old and a 14-year-old could both be criminally charged for having a sexual relationship with one another. If convicted, they could be required to register as sex offenders for the rest of their lives, unless they petition successfully for removal under Florida's "Romeo and Juliet" law.

As you can see, Florida law on sex-related offenses can be confusing. In high-profile cases, this is complicated by the fact that many offenders are convicted in the “court of public opinion” before they ever see the inside of a courtroom. As a criminal defense lawyer in South Florida, I cannot stress enough how important it is to get an attorney early in the process to help avoid the embarrassment and very real damage a sex charge, however unfounded, can cause to clients’ cases and lives.

It’s nearly New Year’s Eve, and for Florida drivers, that means an upswing in police DUI patrols and sobriety checkpoints. According to the South Florida Sun-Sentinel, Palm Beach County and Broward County are both increasing their patrols for the holiday, and other jurisdictions in Florida are likely to do the same. As an experienced criminal attorney in Miami, I know how tragic the consequences of drinking and driving can be. If you find yourself considering driving after a few drinks this year, consider calling a cab, getting a ride with a sober buddy or taking advantage of program’s like the AAA’s Tow to Go Program.

But as a South Florida DUI defense lawyer, I also see many clients whose misconceptions about drunk driving laws and penalties got them into trouble they could easily have avoided. So for this holiday, I’d like to take a moment to clear up some of those misconceptions and remind drivers about their rights, responsibilities and potential penalties under Florida DUI law.

The first thing to know is that technically, you can refuse DUI tests -- but it may not be a good idea. There are two types of tests used by law enforcement to spot a driver under the influence: field sobriety tests and chemical tests of your blood, breath or urine. In almost all cases, the officers will administer both tests.

Field sobriety tests are the physical tests officers give on the roadside: Walking a line, finger to nose, standing on one leg and horizontal gaze nystagmus (in which you follow an object with your eye and an officer checks the angle at which your eye starts to jerk). They are not considered very accurate, and in fact, a sober person might fail for any number of innocent reasons. You have the right to refuse a field sobriety test, but keep in mind that the officers will not like it very much. The officers can arrest you anyway if they feel there’s enough evidence to support a DUI charge.

Chemical tests are a different story. All drivers on Florida roads (including those with out-of-state licenses) have given “implied consent” to blood, breath or urine tests simply by using the roads. If you’re pulled over, you generally don’t get a choice of tests. In fact, officers may ask for more than one if the results aren’t clear, and they will insist on a blood or urine test if they think you’ve used drugs. If you refuse these tests, you will be penalized for it -- a first refusal doubles the time your license will be suspended (to a year) and can be used as evidence against you in a DUI court case. A second refusal is a criminal misdemeanor.

Another common misconception has to do with the automatic driver’s license suspension. Even a first DUI in Florida draws an automatic driver’s license suspension -- unless you fight it at an administrative hearing at the DMV. You don’t get this hearing automatically! You have to request it in writing, and you must make that request within ten days of your arrest, or your opportunity to protect your driving privilege is lost. You can, and should, have an attorney represent you at this hearing. Unfortunately, the administrative hearing is completely separate from your court case, which means winning one doesn’t help you win the other. As a Fort Lauderdale criminal lawyer, I handle both the hearing and the criminal case for DUI defendants, usually as part of the same defense strategy.

The penalties for driving under the influence of alcohol or drugs in Florida are harsh, even if it’s a first offense. First DUI offenders can expect:
• Up to eight hours in jail, until the police believe they’ve sobered up.
• Their vehicles to be impounded or immobilized for ten days, under most circumstances.
• Driver’s license suspension for at least six months -- a year if they refused to take a breath, blood or urine test.
• A fine of $500 to $1,000. The fine rises to $1,000 to $2,000 if there was a minor in the vehicle or the BAC measurement was 0.15 or higher.
• Fifty hours of mandatory community service.
• Twelve hours of mandatory DUI school.
• Possible court-ordered alcohol or drug addiction treatment.
• Up to a year of probation.
• At the judge’s discretion, six to nine months in jail.
• An immediate and sharp increase in their auto insurance rates.

As you can see in the Florida statutes, these penalties increase sharply for a second or third DUI conviction, and the defendant is no longer eligible for community service or probation. In addition, a subsequent conviction requires you to have an ignition interlock device (breathalyzer) installed in your vehicle. A third conviction within 10 years, or any fourth or subsequent conviction, will be charged as a third-degree felony.

I spotted an article in today’s New York Times that I thought was sobering but relevant to my practice as a criminal defense lawyer in South Florida. Just in time for the holidays, the Times brings us a reminder of the economic troubles many Americans face this year. The article tells the story of Richard R. Johnson of Elkhart, Indiana, who faces shoplifting charges for trying to steal a $4.99 bottle of sleep medicine from a grocery store. He had actually intended to pay, but came up a dollar short.

Johnson admits his guilt and says he realizes it was a bad move, perhaps committed because he was desperate. He was laid off last year from a well-paying job building trailers, then again recently from McDonald’s. His family of four relies on his wife’s minimum-wage job at Wal-Mart, help from family and a food bank to get by.

According to the article, retailers are seeing a sharp increase in shoplifting -- 10% to 20% higher than normal, according to police departments. That may be a low figure, in fact, because stores often choose to handle smaller thefts on their own. While many people arrested for shoplifting are people who made bad decisions under stress, like Johnson, the article says many other shoplifters are part of organized shoplifting rings. These organized crime rings have moved online, where they can do millions of dollars in business. Experts quoted in the article say that it’s these rings, rather than individuals like Johnson, who pose a serious threat to retailers.

Johnson told the New York Times he was surprised that the grocery store would bother prosecuting such a small theft. The store says its policy is to prosecute all theft, and of course, it has every right to do so. Shoplifting is a crime -- and like Johnson, many of the theft clients I’ve represented know that they did something wrong and regret it. As a Miami-Dade criminal defense attorney, I have had great success getting my clients favorable results.

The holidays are a time for forgiveness. With the economy in an acknowledged recession and thousands of families across the U.S. struggling to make ends meet, it seems almost Scrooge-like to prosecute someone like Johnson to the fullest extent of the law. The penalties for second-degree petty theft (the charge for shoplifting goods worth less than $100) in Florida include steep fines and up to 60 days in jail, which could add up to a serious burden for someone desperate enough to steal $5 worth of merchandise. If organized crime poses a much more serious threat, as the article says, perhaps retailers should focus their efforts there instead.

Miami Criminal Defense Attorney, the saga continues...to carry or not to carry?

More on Athletes and Firearms.

Miami Criminal Defense Lawyer asks, is your computer safe? Do you have your passwords written under your desk blotter or in your rolodex? Even if you are good at hiding your password, technology today makes it very easy for someone who knows what they are doing to crack your codes. What does that mean for you as a user?

If someone gains access to your computer for even a minute, they can turn your computer into a host computer and source all their activities through your machine, insulating them from police detection. So when the authorities come a knocking, and eventually they will, you will look like the culprit. What agencies and users are starting to do is incorporate some of the changes recommended by a panel - Panel Offers Ways to Bolster Cyberspace Security. One security system is similar to a USB device that gives out scrambled codes every time the user seeks to log in, thus giving the user a new password each time.

There are a variety of ways to protect yourself, but the simplest way is making sure you don’t leave the front door open. For more information on cyber crime prevention or advice if you are facing cyber crime charges in the United States, please contact David Seltzer, Miami Criminal Defense Lawyer Miami Cyber Crime Defense Attorney today for a free consultation 24/7.

As a Miami Dade Criminal Defense Lawyer pondering Plaxico Buress’ latest off the field saga, I guess the real question that sports fans have to ask one another is why do people who have it all feel the need to do stupid things? Just a thought, but if I was making $206,000.00 a week playing football, carrying concealed weapon into a night club and shooting myself would not be at the top of the list of things a Fort Lauderdale Criminal Defense Attorney would consider to be a fun night out.

Under Florida law, carrying a concealed firearm is third (3) degree felony punishable by up to five (5) years in prison. However, that being said, discharging a firearm in public carries an additional penalty of up to a year in jail. Under Florida law, if the individual is not a convicted felon, there are no minimum mandatory sentences, unlike New York. The long and short of it is, Plaxico Buress, next time you are stupid and want to lose $824,000.00 do it in a state where the penalties aren’t so harsh.

See Giants' Pierce to testify for grand jury.

The Supreme Court of the United States has “drawn the line in the sand” about what is and is not child pornography. See Ashcroft v. Free Speech Coalition. So is taking pictures of your children in the bathtub, or them running around the house naked child pornography? Having been a prosecutor in Miami and dealing with cyber crimes/child pornography, and now a criminal defense lawyer, it is simply something you cannot explain. You know child pornography when you see it. Art is still art, and there is nothing illegal about taking pictures of children clothed, or nude. The question you have to ask yourself when determining if the image is child pornography is, what is the focus of the image? Is the purpose of the image sexual in nature? Does the image focus on a certain part of the minor’s body? The list goes on from there as to what factor government officials use in determining what is and is not child pornography.

That being said, images that don’t fall under child pornography may fall under the category of child erotica. Child erotica is not illegal to possess. However, it is often times difficult and open to many varying degrees of interpretation as to whether something qualifies as child pornography or child erotica. Furthermore, depending on your State laws and the position of the US Attorney in your State, possession of child erotica may be a crime.

In a recent article published by an affiliate of the Miami New Times, the author published images of her children in various stages of undress. (See Newspapers nude child photos draw police review). Now let me state that I have not seen the images, but from what I gather, the focus was no sexual in nature, rather artistic. So why the uproar? It is an election year and politicians can’t be seen as soft on any type of crime that may involve minors. The courts have settled the issue, however, like anything else dealing with the law it will be continually debated for years to come. But again, child pornography is just something you know when you see it, and unfortunately leaves a lot open for interpretation. So ladies and gentleman, the moral of the story is keep your family photos to yourself!

Our family, who had never, ever been touched by any type of legal situation before, found ourselves in a desperate situation. My husband was arrested for a cyber crime - online solicitation, and we were thrust in the middle of a confusing, frightening, unfamiliar world. I immediately began checking on attorneys. I knew we had to move and move fast. I wanted the very best Florida criminal lawyer there was. I also wanted one familiar with cyber crime. Over and over again the name of David Seltzer, Miami Criminal Computer Crime Lawyer kept coming up. I was told if I wanted the best- he was it. I knew with situations like this you didn’t play around. My husband’s very life depended on quality representation. I contacted Mr. Seltzer, Miami Criminal Cyber Crime Attorney, and he immediately took control of the situation. They arrested my husband in our home state of Kentucky and took him to Florida. Mr. Seltzer’s people met my husband at the jail and got him released. They rented a motel room where he could wait until he was allowed to return to KY. He never had to spend one night in jail in Florida. I was home here in Kentucky and I was panicking, I didn’t know what to expect or what to do. I think Mr. Seltzer, Miami Criminal Computer Lawyer, called me at least 10 times a day during that first week. He gave me his personal cell phone number and gave me permission to use it anytime I needed it. When he says he is available 24/7 – he means it! He definitely went the extra mile to walk us through the court system step by step. Although this crime had the potential of 15 years in jail and a minimum of 21 months, my husband did not have to serve any jail time at all. We cannot convey how important it is to have a good attorney in cases like this. Everyone was right when they told me Mr. Seltzer was the very best criminal attorney in Florida. He is not only knowledgeable about cyber crimes, and computer and internet crimes, he was previously a prosecuting attorney who dealt with cyber crimes in Miami. Mr. Seltzer, Miami Criminal Attorney is very assertive and he is on top of every aspect of your legal defense. Nothing gets by him. If you are facing legal problems, I urge you to contact him immediately. Mr. Seltzer, Miami Criminal Lawyer did an outstanding job for us and we give him our highest recommendation.

Signed
A GRATEFUL WIFE

In India an individual charged with a cyber crime now has to prove their innocence (Onus on IP address owner to prove innocence). Is the United States any different? I refer you to one of my earlier posts - Presumption of Innocence, Where Did It Go?

Being involved in the cyber crime world I see it all the time. IP addresses, an individual's fingerprint in cyberspace can be manipulated, spoofed, make someone virtually untraceable. So how can an ordinary individual be expected to protect themselves against a sophisticated cyber criminal and then have to prove their innocence?

Florida and the rest of the United States is not there yet, but I can assure you that an individual charged with a cyber crime case is not going to take it lying down. Yes, the State has the burden of proof and the ability and resources to secure necessary evidence, but do they always do it? IP logs are retained for a limited amount of time depending on the internet service provider ("ISP"). Yahoo!, EBAY, Facebook, Hotmail, AOL, etc., all have retention periods for logs that can range from 45 days and up. Once the data is purged, it is gone forever. Which can make defending yourself extremely difficult, if not impossible.

It has been my experience that ISP's are friendlier to law enforcement and give private attorney's the run around at every corner. So I have taken it one step further on the advice of a colleague. I have recently had a local police department investigating one of my clients served with a Brady Notice, as well as the local State Attorney's Office. The State can get the potentially exculpatory evidence with ease, which may vindicate my client; thus, close their investigation, so why wouldn't they want it? The name of the game is cover your A$$. Make sure if there is potential computer evidence out there that can help your case, it's preserved. Even if the State won't issue a subpoena, ask that a preservation letter be sent to the ISP so that they evidence can be preserved in its current state for 90 days. At least that way you have some time to fight with the ISP for the records. If you can't get it done in 90 days, on the 89th day, have the State send another one extending the time period.

Remember, it is not possible to store all the data our computers generate on a daily basis. It just doesn't make sense for the ISP's financially, so the key is preservation, because at the end of the day, you may be the one proving your client's innocence rather than the State meeting it's burden of proof.

People always wonder, do athletes get special treatment? The answer is, in typical lawyer speak, "it depends." There are programs around the country designed to give first time offenders a break. A "get out of jail free card," if you will. In Miami, Florida, the program is called Pre-Trial Intervention ("PTI"). The purpose is to show an individual who has committed a qualifying crime what contact with the system is like in hopes to deter any future contact. Generally the conditions of PTI range from fines, donations, courses, to community service hours. Once the conditions are completed, the case is dismissed, the individual is eligible to have their record sealed and expunged, and life goes on!

So, athletes and celebrities who are also first time offenders are entitled to the same treatment. Just because they are in the public eye doesn't mean we should treat them differently. As I was working earlier today, I received a call from my home town of Montreal from Mitch Melnick at radio station Team 990. He wanted to know more about the Montreal Canadians hockey player whose case was dismissed in Tampa, Florida earlier today. As I understand the facts of the case, Ryan O'Byrne, along with a teammate Tom Kostopoulos, were charged in Tampa in February for an incident relating to theft and resisting arrest. Kostopoulos' case was dismissed; however, O'Byrne's remained open until today when it was dismissed in exchange for an apology and community service hours. (Charges dropped against Habs' O'Byrne after court apology, community service)

There are a whole host of reasons why a case gets dismissed, but again if a first time offender is taking responsibility and cooperating with the authorities, this type of result is not uncommon, famous or not. People make mistakes in life and the criminal justice system is supposed to be "somewhat" rehabilitative, no?!

Florida Lawyer Segment

Cyber crime is on the rise. Not a novel or new statement, but what is novel and new is the way that law enforcement, attorneys, and judges are dealing with this new area of the law. South Florida (Miami and Broward County) is no exception or stranger to the increased cyber crime. Cyber law crosses into various aspects of our current legal system – civil, domestic, criminal, etc. This list is meant to give you a glimpse into the world of cyber crime and what lies ahead for the defense bar. Combating these case is often timely and costly, but with the right strategy and defense, cyberspace may hold the key to vindication!

Here is part 1 of the Top 10 Do's and Don'ts on various issues concerning cyber crime cases (Part 2 to follow in the upcoming weeks):

6. Chat logs, are they what they purport to be? Has your agency caught up with the Jones’? What type of technology are they using to track your client’s chats? Most agencies are new at the whole cybercrime game, so they are doing things the old fashioned way; they are cutting and pasting the chat logs into a word file. Often times you can argue that is not the “best evidence,” as the data is easily manipulated and often times missing lines of text as well as other important text entries. There is software out there that allows the undercover agent to track the conversations, whereby they don’t have the ability to manipulate the data. Check your jurisdiction’s case law. But the best evidence is always the logs. Computers don’t generally retain chat logs, but often times forensically you can recover excerpts, which can be helpful.

7. IP Logs. Always check the little things that can be overlooked. I have seen it before, where an agency is investigating a crime and has subpoenaed IP logs, date/time, etc., but has either forgotten to include the appropriate time zone, the wrong time zone, or didn’t take into account daylight savings time. So make sure the government agency has subpoenaed the right IP logs. For example, if the issue is an AOL email that was sent containing suspected child pornography, the correct IP log to subpoena would be found in the header information of the email sent, not the IP log captured when the AOL screen name registered the account.

8. Is your client a collector? Generally speaking, someone who possesses child pornography has tendencies that are obsessive compulsive. They collect images and videos, and will usually have hundreds if not thousands of images. So what does that mean for the client who is found with one or two? Very important not to dismiss your clients statements as to how or why they are there. Computers these days do a lot of crazy things and if your client only has a few pictures, I would get ready to dig in your heals in order to determine where they came from and how they got there. (Refer back to No. 1 – Forensic Expert is key!)

9. Does the search warrant authorize what the agency actually did? Computer search warrants can be very technical and complex these days. With that being said, the judge who is reading the warrant often times doesn’t understand what the warrant specifically authorizes. Then again, sometimes neither does the affiant of the warrant. This tip on search warrants should be read it conjunction with number 3, because when you are deposing the affiant you want to grill them on the warrant to ensure that they accurately portrayed the sworn affidavit to the judge. Fruit of the poisonous tree…Additionally, information contained in a warrant may be inaccurate. For example, the affiant may have used an incorrect IP address as its source of probable cause, wrong property description, may not have had probable cause to believe the evidence they are seeking would be stored on a computer, and the list goes on. Furthermore, does the warrant even authorize a search of the computer and/or additional seized media post-seizure? If it does authorize a search, what does it authorize a search for? If it is documents, and they discover images of child pornography, do they continue to search without a warrant, or did they stop to secure a new warrant to search? Just a few issues to scratch the surface on warrants.

10. Consent, to what? Agencies often attempt to secure consent to search electronic media rather than get a search warrant. What you need to look for is what was seized, whose electronic media was it, did the person who gave consent have the ability to give consent (does that person use the computer on a regular basis, do they have their own login information, is the computer password protected…). Agency’s investigating cyber crime love to execute the knock-and-talk with a consent waiver in their hand. Target is usually not home and the girlfriend, wife, or adult child, signs on behalf of the target that has no idea what is going on. Later on appeal, the State argues they had probable cause and through inevitable discovery, they would have gotten a warrant. I submit to you that’s bogus. If they had probable cause, they would have come warrant in hand, and but for the consent to search form being executed by an individual without authorization, they would not have any evidence.

a. Additionally, depending on your workplace, your client may already have given their employer permission to search their workplace computer. Be it a form you signed on day one of your employment that informed you of the company’s computer policies, or a daily banner that comes up on your screen every time you logon, an employer may be able to give law enforcement what they are asking for. This scenario is wholly dependent on what the banner/notification policy states.

The litany of questions and hypothetical’s is too long for this list, but just be aware that in the land of cyberspace, there are always alternative theories and legal issues that will keep the government agencies on their toes and require exploration by the defense bar deep into the world of cyberspace!

David S. Seltzer is a former Miami-Dade County Cyber Crime State Prosecutor. His practice is limited to criminal defense with a specialty in cyber crime. For more information or to contact David S. Seltzer, please visit www.cybercrimesdefense.com.

Imagine coming across the border into Miami having returned from a business trip. Laptop in hand, nothing to declare, and the next thing you know, your laptop is being read and reviewed by TSA. Fair? Legal?

As politicians grumble over what appears to be the latest invasion of an individuals privacy by the Bush administration, what ever happened to this country's 4th amendment right to be free of unlawful searches and seizures? What the government is seeking to do now is to search laptop computers of those who enter the country at will. It is raising a lot of red flags, as United States citizens, and I believe rightly so, are in an uproar that their constitutional rights are being violated.

Once back on United States soil, do their rights not apply? According to the 9th Circuit Court of Appeals, TSA has the right to search laptops of those entering the country without probable cause, reasonable suspicion, all they need is a hunch and then they search. Non-US citizens, ok maybe, but even still, why are the courts giving TSA so much leeway? I understand we are at war and our safety is our highest concern. I am all for drug and bomb sniffing dogs, but the freedom to read email, search documents, etc., without reasonable suspicion, probable cause or a warrant, simply by racial profiling, I cannot agree. The Courts that we have in place to uphold our constitution, to me is making a mockery out of it. Looking for loopholes anywhere they can.

This issue is far from over. It is being address in the Senate and by Congress. For more information please see the article: Laptop Searches in Airports Draw Fire at Senate Hearing

First off, thank you to Prof. Patrick Corbett, from Thomas M. Cooley, who passed this story on to me. I recently ran into Patrick at the ABA Cyber Seminar, in Washington, DC. I attended Cooley, prior to transferring to Miami. I transferred for family reasons, but I truly believe that the education at Cooley is one of the best in the country, because they really, truly care about the success of their students.

State worker was charged with possession of child pornography on his workplace computer. A situation that is all too familiar these days. However in this case, the computer wasn't all that accurate. Yes, the computer did possess child pornography, but in filing a case the State must also prove that the user knew (or had dominion on control over the images). In this situation the State had neither. In a forensic review of the computer, the defendant was able to prove that he was not accessing or viewing child pornography, rather the computer was. What?

This is not the first instance of computers doing things on their own. Basically what happens is that you either intentionally, or unintentionally (virus), download a software application. They come in many forms, but the gist of the application is the same - it seeks out pornography, and doesn't differentiate between child and adult. It then appears to the world that your "machine" has been viewing pornography, and thus the police investigation/charges.

Who's fault is this? You would think that in the "pursuit of justice," that the police would be cognizant of the various types of viruses out there and when they forensically analyze the media they seize, that they would search for them. In reality what happens is that due to the backlog of media that is waiting to be forensically analyzed throughout this country, once the analyst discovers the evidence to make its case, the forensic review stops and the case gets filed. That begs the question, who really has the burden of proof?

It just goes to show you that you really can't judge a book by it's cover. For the article, click here: State Worker Cleared on Child Pornography Charges

Breakers jewel thief sentenced to prison

By LARRY KELLER

Palm Beach Post Staff Writer

Thursday, June 12, 2008

WEST PALM BEACH- — Debonair international jewel thief Nordine Herrina traded his expensive suits for drab jailhouse blues in court today, where he pleaded guilty to stealing two rings from a Palm Beach jewelry store that retailed for $1.5 million.

Herrina, 32, was sentenced to 3 1/2 years in prison after agreeing to plead guilty to two counts of grand theft of more than $100,000. He was credited for the two years he has been in jail, reducing the actual sentence to 18 months. Each charge carried a maximum sentence of 30 years in prison.

A French citizen, Herrina was a globe-trotting jewel thief extraordinaire who pocketed millions in baubles, authorities say. Dapper and accompanied by a beautiful woman, Herrina used sleight of hand to swindle jewelers in Italy, France, Switzerland, California and New York, they say. On at least one occasion, he claimed he was Prince Khalid of the Saudi royal family.

He was imprisoned in Italy in December 2002, then transported to Switzerland where he was sentenced to the time he already served in Italy. But the United States began extradition proceedings to have him face charges in Miami-Dade County, Palm Beach County and Orange County, California.

He arrived in Miami earlier this year. A judge there also sentenced him to the time served abroad, and ordered him to pay $145,000 in restitution. His next stop: the Palm Beach County courthouse.

Before retired Judge Roger Colton sentenced him today, Herrina gave him a neatly printed letter in which he said he has reformed. Unmarried, he has a 5-year-old daughter, he wrote.

"I am suffering for all this years lost from life from 26-32 years," he wrote. "I will like to see my daughter. I have learn a lot in prison. I will ... come back in the society and give the best of me."

If the way Herrina filched two rings from the Diamont Noir jewelry shop at The Breakers hotel in April 2001, was typical of how he operated, he was as smooth as a perfect pearl. Here's how Palm Beach police — who worked with the FBI and Interpol — say he did it:

Wearing a navy blue double-breasted suit, white shirt, violet tie and carrying a black alligator-type wallet, Herrina walked into the shop with a buxom blonde wearing a low-cut, off- the-shoulder blouse.

He asked to see a ring in the display case, and the blonde tried it on, then returned it to Stephanie Halimi, the store owner's daughter. Herrina then asked if Halimi had something bigger for his wife, explaining that the blonde was his girlfriend.

Herrina was shown a larger ring. He asked to speak to Halimii in a back office. Then he asked to see the box for the ring. Next, he asked to speak to employee John Goodkin, saying he preferred to do business with a man, because he was Arab.

Herrina put five 100-dollar bills on a counter and said he wanted to buy both rings — one for his wife, one for his girlfriend. The larger ring was a platinum, 9.15 carat, cushion cut diamond, flanked with two half-moon shaped diamonds. Retail value: $1.06 million.

The smaller ring was set in 18 carat yellow gold and platinum, with an 11 carat, fancy yellow pear-shaped diamond, flanked with two pear-shaped clear diamonds. Retail value: $441,140.

Herrina told Goodkin that he would return to purchase the rings after he went to lunch. Goodkin thought he watched Herrina place the rings back in a black velvet box, which was placed in a safe. He asked Goodkin not to show the rings to anybody else.

As Goodkin was about to close the store at 7 p.m., the "Arab" and the blonde had not returned. He went to the safe and discovered both rings were missing.

Police believe Herrina and his friend scammed a Boca Raton jeweler out of a $130,000 bracelet the same day, and were thwarted by a second jeweler in that city. The next day they were trying the same ruse at Cartier and Christian Dior shops in New York City, they say.

Now Herrina is headed to a Florida state prison, but maybe not for long. He still has charges pending in Orange County, California, which has the right to grab him immediately, said his Miami attorney, David Seltzer. If convicted there, he could serve his sentence in California, Seltzer said.

As part of Herrina's plea deal on Thursday, he was ordered to pay $1.5 million, plus $846 in court costs. But Judge Colton told Herrina that once he finishes his U.S. prison sentence, he likely will be deported — he still must serve a two-year sentence in France — and barred from returning here.

"There's no way of enforcing those judgments," Seltzer said.

State and Federal agencies are cracking down on child pornography in an effort to protect the nation’s young from repeated online victimization. Internet Service Providers, such as Verizon, Time Warner, and Sprint , have announced that they will be spending in excess of $1 million dollars to purge their systems of anything child porn related. For more details see: Verizon, Time Warner Cable, Sprint to Block Child Porn Sites

The question is at the end of the day, how will this really help protect our nation’s youths? Will all the nation’s ISP’s follow suit? Will this become legislation? If the Federal Government steps in, what happens when this is challenged in the court’s over free speech and first amendment issues, just like Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002). This new twist in fighting child pornography is not over...

Over the weekend, I was in my home town of Montreal, Quebec, Canada, when an incident broke out. A little background first about Montreal. Montreal is a beautiful European city, but it is very tight-knit, in that in the surrounding neighborhoods and communities, everyone knows what’s going on.

A teacher at one of the local private schools in Westmount, a suburb of Montreal, was arrested in Virginia for allegedly soliciting an undercover police officer over the internet. As I was in Montreal over the weekend, I attempted to find out more. I went over to the high school, where I was essentially escorted out of the school for inquiring about the subject. This wasn’t the end of it. No one in the city seemed to want to help this individual. Now, I am not insensitive to the underlying allegations; however, what bothers me is that as a society, this man has already been tried and sentenced. What happened to the presumption of innocence today? The same people who threw me out of the school are the same ones who teach our children about our justice system and society.

I understand that the crime he is alleged to have committed is appalling to our society; but does no one believe in the system of justice that we have followed for centuries? I have seen people charged with murder get more assistance than I have this individual. Forget rights, the allegation alone has created a situation whereby he is guaranteed NOT to get a fair trial.

I recall when I was a prosecutor trying a case involving child pornography. I had similar thoughts; who can really be fair and impartial? I really truly believed that it was possible for someone to sit as a juror and render a fair verdict. Looking back on it, when faced with images of child pornography and evidence of where it came from, was there any way a conviction wasn’t coming? Now the defense in that case did a fabulous job representing the client, but did it matter? Was the client really tried by a “jury of his peers?” Were the pictures alone the basis of the conviction, or did the jury actually listen to the evidence?

Is there still a presumption of innocence in our society when online crimes involving children are ALLEGED. Does the State/Government still have the “burden of proof,” or has it really shifted to the defense (contrary to our laws) to prove his innocence?

After what I experienced in Montreal over the weekend, I know I still believe in this country’s justice system, I’m just not sure most of its citizens do.

In a recent news article delivered to me by a friend of mine, Mark Mulroney, the technology used to search a suspect’s computer has taken a giant leap forward. No longer are police and investigators required to track cables, label machines, and photograph the exact location of every device. With this new device from Microsoft, the Computer Online Forensic Evidence Extractor, commonly referred to as COFFEE, law enforcement can literally have your information at their fingertips.

COFFEE is a USB thumb drive that contains 150 commands that can dramatically cut the time it takes to gather digital evidence, and decrypt passwords and analyze a computer's Internet activity, as well as data stored in the computer. What could have taken days, weeks, and months, to crack can now be done in a fraction of the time. What does this mean? Well let’s look at it from a law enforcement point of view.

For law enforcement, it means less time on scene taking down computers, and quicker analysis’ of machines (possibly depending on the purpose of the investigation), to name a few benefits. Therefore, faster turn-around time on pending investigations and prosecutions, and ultimately, it could lead to saving law enforcement a lot of time and money, which we all know they can use with budget cuts all over the country, especially in Florida.

What does this mean for the non-law enforcement individuals? Well, for now until the entire scope of what this device is capable of, not much will change. I am certain that this device will be challenged as to authenticity of the material recovered. I have yet to see how exactly is can re-create a clone or image of a hard drive, which is what is needed to preserve the integrity of a computer’s hard drive. It looks like all this does is a quick search of the drive for whatever the investigation calls for. Some interesting discussions that may follow as a result of this are whether or not inserting a thumb drive into a computer can trigger a virus, or alter any computer data, or trigger a program, which all can compromise data. I am sure Microsoft has explored all those possibilities, but as the world goes, so do technological advances and someone will figure out a way to trip this device up. It is inevitable. Food for thought, what happens if this gets in non-law enforcements hand, then what…?

For the more information on COFFEE, check out:

Microsoft device helps police pluck evidence from cyberscene of crime

Microsoft Calls on Global Public-Private Partnerships to Help in the Fight Against Cybercrime

Microsoft COFEE (Computer Online Forensic Evidence Extractor) for law enforcement

So my clients had their hearings, which were supposedly impartial. There is good news and bad news, but I am still unclear about the bad news. If you recall from the WSVN Channel 7 story the young lady who was victimized and sucker punched in the altercation, she was suspended for the remainder of the semester and kicked off campus. She now has no where to live and no money, and of course, the University will not return the money she paid for housing and tuition. She is however, allowed to come back to school next semester, so long as she pays her tuition and expenses. Go figure...This is not the end of her story...

As for the budding cameraman, he was allowed back into school and into housing, with certain restrictions. The question is, due to the amount of time he missed because of the University's suspension, he may not be able to complete the semester, which again will require him to pay more money to the University to make up the classes. All for videoing an incident on school property and posting it on YouTube.com. But again, his future has been affected and this may not be the end of this situation for him either.

The University showed their true colors here for what clearly appears to be financial gain. As I said in my interview with Channel 7 WSVN Fox, the University was not happy for the "black eye" this incident gave the University. Over 500 people saw the video on YouTube.com and god forbid that affects the Universities enrollment as there was a physical altercation on campus.

I have learned that last year a student broke down a door on campus and pulled a knife on another student in the dorms. End result, that student was not expelled and continues to be a student at Barry University. Another incident involving a female and a fight on campus, still has that female student enrolled at Barry University. So why has my client, who is CLEARLY the victim in this incident, and solely protecting herself and her safety, no longer a student this semester at Barry University? My client was a good student, involved in student leadership, and would give tours of the campus to prospective students. I am at a loss for the way the University is handling this situation, but then again, the saga continues...

Is your information safe? People take a lot for granted when it comes to the internet and their financial information. For example, the simplest thing that most people forget to do when using a public computer is making sure they are logged off and thus, the person after you doesn't access your information. Internet security is an issue that it is at the forefront of countries security all over the world. Internet hacking is the crime de jour, and the new target for organized crime. No longer do people walk into banks and rob them like Bonnie & Clyde, they do it from the comfort of their living room. What are you doing to make sure that your information is secure?

So when did we lose the right to freedom of speech? The law doesn't allow private institutions to thwart the law, so why does Barry University think they have the right to bully around two young students? Kids will be kids, and I am the first one to state that all parties may not have clean hands in this situation, but as far as Barry University is concerned, while on SCHOOL PROPERTY, my clients did nothing wrong.

If you haven't already heard, Barry University has initiated expulsion proceedings against two students, both of which have 3.0+ grades, and one of whom is a student leader. Both students have aspirations of higher education and distinguished professional careers. Now the only thing that stands in their way is private politics.

A video of the incident which occurred on Barry University's campus April 4, 2008, was posted on YouTube. What the video shows, is a loud discussion among some students that drew a crowd. My client, the budding camera man decided to film the altercation and include his own play-by-play commentary. My other client was involved in the debate, but as the video clearly shows, she WAS NOT the aggressor, rather the victim when she was sucker punched by another female. Present during this altercation was the resident adviser as well as numerous campus security. Kudos to the student RA, who was the only one from the school who attempted to stop the incident.

50 States security, one of Barry University's rent-a-guard patrols, is seen on video and asked if he was going to stop this incident, to which there was no response. Also, in violation of school policy, the security guards hired to protect the students failed to file incident reports.

Some great filming if you ask me. Lots of different camera angles, shots of the crowd, the interested parties, the school officials. Barry has taken the position at this time that only my two clients, and the girl who threw the punches are being expelled. Of course that position changed once Fox News Miami got involved. The University was planning on identifying every student who stood idly by and watched the altercation and expelled them in accordance with some obscure school policy. But of course, as the media got involved they backed off that course of action.

So what makes my clients any different, why are they being railroaded here? In an attempt to resolve this matter today, I contacted both the Dean of Students Office and the Legal Department. End result nothing was done. When asked if I can attend a meeting with my clients earlier today, answer no, the public is not allowed to attend hearings and meetings. Ok, so my clients then met with Jeff Edwards of the University who asked them to sign a document admitting the charges against them. Why would they sign a document admitting something that didn't happen, just to allow the school to expel them...Barry clearly has shown no interest in doing what is best for their students, rather, they are simply concerned with their image. My clients didn't break any laws. My clients are the victims here.

Here we have two students from out of state, with no money and no place to sleep. The University has informed them that if they return to their dorm rooms, which they are continuing to pay for, or to the cafeteria, to eat meals they are continuing to pay for, then they will be arrested for trespassing and charged criminally. So now I have to clients, which I will gladly continue to feed and make sure that they have housing, but what is Barry doing to protect these young students who they have made homeless? Are they going to give them back their money, voluntarily? Of course not, but then again that is why we have courts.

Below is the piece that aired on WSVN 7 Miami today. I am working of putting the entire video up, so check back soon so you can be the judge as to what is really going on here. This is a travesty of justice and the University is trying to sweep it under the rug. Well, I won't let them.

It is with great pleasure that I announce the launch of www.davidsseltzer.com.

Please check it out and let us know how the Law Offices of David S. Seltzer, PA can help protect your freedom and rights. Don't delay, let a former Miami-Dade County Prosecutor help protect your good name and reputation. Contact us today.

So I was watching a television program and there was an interesting storyline. The program addressed a plethora of child pornography issues, which are clearly becoming an increasing concern for law enforcement as technology quickly advances. Without going into the entire show, the two interesting issues were: Youth Enhancement Software (Image Manipulation) and Steganography .

The program focused on the landmark case of Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002), possession of virtual child pornography is not illegal, rather free speech. And what has developed as a result of that is a world that law enforcement and the Supreme Court cannot control. Technology that is used for “good,” age progression software; is now being used in reverse – age regression. So essentially, legal aged girls are being photoshopped back into their youth, and the child pornography is legal. According to the Supreme Court, that’s legal. Virtual child pornography or manipulated images are going to make prosecution of child pornography a whole new world. As these images start popping up around the world, prosecutors will no longer be able to stand up there and state that the images are actual real children. Expert testimony is going to drive the cost of prosecution on these cases through the roof, and with cutbacks all over the country in law enforcement, it will be interesting to see what gives, the trial tactics, or the Constitutional right to “free speech…”? If anyone image in the defendant’s control is not “authentic,” the entire prosecution is compromised.

Another interesting issue addressed in the program was Steganography . Basically, it’s a secret image or text hidden behind another image. This is interesting because it is becoming more prevalent on the web and easily available to anyone who can download the necessary software. It’s not used solely for child pornography, but it’s been its most recent adaptation. To the naked eye, without the appropriate software, looking at a picture of the Statue of Liberty can really be pornography. When you decrypt the code, you will not see any lost pixels or portions of the image. So sending it over the internet can often allow the image to travel undetected through internet photo scanner programs (a discussion for another day).

It makes you wonder about technology today and its effects on the investigation and prosecution of child pornography, what does tomorrow hold? Technology is going to continue to be an uphill battle for all involved in protecting our youth. So again, what has to give to protect our children, whose rights, free speech?

The law is in place to protect all of us, including police, so what makes them feel that they can (a) toe the line, or (b) break the law? First, before I continue on this topic, let me stress that the case I am referring to is not being prosecuted in South Florida, but it is being prosecuted in the State somewhere.

I was recently retained to work on a matter pertaining to cyber crime. Upon my review of the facts, I was shocked and appalled that the prosecuting agency was acting in this manner - not willing to discuss the case or the lack of the case they have. Instead, what it appears as though they are willing to do is create law, which as the current state of the case law stands would be great for the defense bar!

I am referring to an online solicitation case with chat logs, not closely, but CLEARLY entrap the defendant. The undercover is the aggressor in each chat, brings up all the sexual conversations, even after the defendant continually says he is not interested in that, and even goes so far on one occasion as to initiate the chat session. Do you want more? The undercover, after she continually invited the defendant to come and visit, asked him of course to bring protection, to which the defendant again said, do not want to have any sexual contact/relations. Undercover, then offered to book a hotel room for them! It went on...

Now if this case ever came across my desk when I was a prosecutor, I would have slapped the detective upside the head and then explained to them why I was not filing the case.

If that isn't enough, there are other issues. Did I mention to you that they are missing NUMEROUS portions of the chat logs as they had computer issues and could not save them. What they do have are excerpts that were cut-and-pasted from the chats, but they are INCOMPLETE. Oh, and they only chose to use the logging feature provided to law enforcement at certain times to record the chats, when it suited them. And of course, there is no mention in the chat logs by the undercover of her age, being a minor, there are references but no direct mention. Also, they said it was common practice for their department to wipe the undercover computer's hard drive, thus making it impossible for any recovery by the defense. This case is a mess for the State, yet there is no telling them that.

On the issue of the chat logs, there is a case on point that addresses this situation. In United States v. Jackson, 488 F.Supp.2d 866 (8th Cir.(Neb.) May 08, 2007), the Court held that cut and paste chat logs failed to meet the foundational requirements of authentication, and thus not admissible at trial. The Court stated that the State has the burden of proof to show that the transcripts are authentic and trustworthy. Id., at 871; see also United States v. Black, 767 F.2d 1334, 1342 (9th Cir.1985); Fed.R.Evid. 901(a); United States v. Tank, 200 F.3d 627, 630 (9th Cir.2000); United States v. Webster, 84 F.3d 1056, 1064 (8th Cir.1996).

In Jackson, the State sought to introduce “editorialized” transcripts, as portions of the conversations were not available as they were omitted in the copy and paste process, not saved, or destroyed. Jackson, at 870. When the time came to use the actual chats, the computer had been wiped, there was no logging feature used, and the editorialized versions were all that was available. Id. “The cut-and-paste document offered by the State is not an accurate original or duplicate, because it does not accurately reflect the entire conversations between the defendant and [undercover]. Id. At 872.

A computer forensic expert testified that there were numerous alternatives to the cut-and-paste method that would have been far more accurate, and would not have allowed data to be lost. Furthermore, that had the computer not been erased, the chat logs may have been recoverable. The Court went on to state that the missing data “creates doubt as to the trustworthiness of the document…[as] deletions have clearly been made to this document, and accordingly, the court finds this document is not authentic as a matter of law.” Id. It is clear that the proposed document does not accurately reflect the contents of the original. Id. At 872.

Two additional cases that also address the admissibility of chat logs and transcripts are United States v. Tank, 200 F.3d 627 (9th Cir.2000) and United States v. Simpson, 152 F.3d 1241, 1249-50 (10th Cir.1998). However, these cases are distinguishable as the actual computer files were offered as evidence, not cut-and-paste versions.

The Court in Jackson, went on to exclude the chat logs in lieu of allowing the officer to refresh his recollection as to the missing portions, as doing so would have allowed the government to indirectly present the chat logs to the jury, and create an unfair situation for the defendant. Jackson, at 872; see also Hall v. American Bakeries Co., 873 F.2d 1133, 1136 (8th Cir.1989).

So is it worth it to hold your ground and start creating law that probably won't conform what's right, or should the prosecutor here realized that you can't win them all?

Sorry for the absence to all my loyal readers, been a busy month moving to our new digs. But I am back and today showing support for a near and dear friend of mine running for Judge. Here is a letter that I received that I wanted to share.
___________________________________________________________________________
Dear Neighbor:

Jorge E. Cueto, a resident of Country Walk, has filed as a candidate for Circuit Court Judge, in Group 11 of the Eleventh Judicial Circuit of Florida. Jorge has over thirty years of professional experience in both the private and public sectors. He was admitted to the Florida Bar in October 1992. As an Assistant State Attorney in the Eleventh Judicial Circuit, he prosecuted defendants in the County, Juvenile and Felony divisions of the Miami-Dade courts. His last assignment with the State Attorney’s Office has been in the elite Public Corruption Unit.

Prior to joining the State Attorney’s Office, Jorge was legal counsel and vice president for a mid-western corporation. In that capacity, he practiced general commercial and corporate law, and executed a number of mergers and acquisitions. Jorge also served honorably as a member of the Miami-Dade Police Department for sixteen years. His last assignment was Commander of General Investigations for the Cutler Ridge District. Jorge was assigned to the County Board of Commissioners where he was named Staff Counsel to the Public Safety Committee of the Board. Jorge is conversant in Spanish, French, Portuguese, and Italian and has a working knowledge of Russian. He has taught several topics as adjunct professor in the College of Urban and Public Affairs of Florida International University. Among these courses were Comparative Legal Systems, Criminal Law, Organized Crime, Origins of Terrorism and Public Personnel Management.

Jorge graduated from Immaculata-LaSalle High School in Miami, Florida. He attended Boston University and received his Bachelor of Science in Chemistry/Biochemistry from the University of Miami. He earned a Juris Doctor from the School of Law of the University of Miami. He also attained an ISO 2000 Quality Auditor Certification through DePaul University and has designed quality control systems conforming to this international standard. Jorge Cueto successfully completed the required CPA curriculum for the State of Illinois CPA at the College of DuPage. He has been admitted to the Forensic Accounting Master Program at Florida Atlantic University.

Jorge’s personal and professional affiliations include membership in The Florida Bar, The Cuban American Bar Association, The American Chemical Society, The League of Prosecutors, Phi Delta Phi Legal Honor Society, University of Miami Law School Alumni Association, The Historical Museum of South Florida and the International Police Association. He currently serves as a board member of the Miami-Dade Citizens’ Independent Transportation Trust.

Jorge Cueto has been married to Ana Maria Cardin Cueto for over thirty years and they are blessed with three adult daughters: Elizabeth, AnaMari and Lauren.

Because of his extensive public service to this community, intellect and commitment to the law and justice, Jorge would be a fair, impartial and well-balanced judge, equipped with a varied technical legal background and the richness of the life he has led. That is why I am asking you to endorse and support his candidacy and contributing in any way you can. Enclosed you will find a self-addressed envelope. Please join me in voting for my husband, Jorge, for Circuit Court Judge on August 26th, 2008.

Sincerely,

Ana Maria Cardin-Cueto

Jorge Cueto for Judge!

Not sure what I find more amusing, the fact that government agencies can get electronic text messages without a search warrant, or that fact that they think this behavior is legal. The right to be free from government intrusion has been a staple our constitution since the beginning of time. So tell me what the difference between an email and a text message is? Answer, for an email you need a search warrant which articulates probable cause, for a text message you need a government agent who believes they have reasonable doubt. But they both contain content, which under the current state of the law in this country REQUIRES a search warrant signed by a neutral judge.

Now as technology changes so does the law, so why haven’t the courts bought into this? In the past, the cellular phone providers didn’t log text messages. Some still don’t. So I can understand why subpoenas were sufficient for text message logs in the past, because there was no content. But today, with content being logged, why the courts having such a hard time grasping that content is content, and an email is no different than a text message.

Verizon Order to Turn Over Text Messages

What Right to Privacy?

Eventually this matter will resolve, but again, it will take time for it to filter through the courts. There is a judge out there who will be able to clearly see that content is content. Until then, we will continue to battle this issue in the courts.

It is with great pleasure that I announce my practice has moved to Brickell. The new address for David S. Seltzer, PA is:

Mellon Financial Center
1111 Brickell Avenue, Suite 2050
Miami, Florida 33131
Tel: 305.444.1565
Toll Free: 866.685.3421
Fax: 305.444.1665
www.cybercrimesdefense.com
www.davidsseltzer.com

Let’s give credit where credit is due, Miami boasts some of the best computer forensic experts I have ever seen. What do you think happens when you delete something on your computer? Well before I learned about computers, I like you, thought it was erased and gone forever. But for some people, sadly that is not the case. When you delete a file or an image, and then take the next step to clear the recycling bin, the files are still on your computer. Sometimes for years to come…

There is software out there that you can use to wipe your computer clean in hopes to erase files, but there have been situations where machines have been wiped 5 plus times and files can still be recovered. So what is on your machine that is so secretive…? Once you learn how a file structure works on a computer you might better understand how the files are recovered. But generally, any forensic examiner worth their salt will find what they are looking for or at least remnants of a file. The stars have to align for all properties of a file to be completely erased, or you have to have some proven wiping software.

For more information on files structures and deleted files check out:

Slack Space
Window Washing Slack Space
Cyber Scrub, What you erased is not really gone

So you again thought you were safe. What people have to realize is that the cost of doing business has gone up in today's world, mainly due to stories like this one. Companies spend millions of dollars a year to protect their infrastructure as well as their clients valuable personal information, only to discover that everything they thought they were doing right has been hacked. As technology advances and we as a society get away from the traditional telephone system, cyber space has become the new switchboard. Not only is it cheaper to make a call on the internet, but you often times have more control over various telephone features that most people don't realize exist. I have been a Voice Over IP user for years and what has essentially occured is that I am always connected to my numbers, be it online, through my blackberry, or a simple text message. I guess there is such a thing as being too accessible.

This nationwide FBI investigation has lead to the arrest of multiple suspects in conjunction with a voice over IP scam (VoIP). What the subjects would do is hack VoIP companies and steal online telephone minutes and resell them. Check out the video and see how these hackers bragg about the capabilities of the companies to secure themselves.

Continue reading "Voice Over IP Hacker Arrested in Miami, a new Cyber Crime" »

So what do you do with all the junk mail you receive about your personal information? Do you believe everything that you see in an email? If so watch this video and educate yourself as to what really goes on in cyberspace. More of my comments to follow.

I know this is probably old Florida news by now, but it just makes you wonder about all the money the government invests into protecting our children and then something like this happens. Agencies are getting more money to fight crimes of this nature, but are they really making any headway? I have the utmost respect for law enforcement – having been a former prosecutor – but where are all the funds going? I know in Miami for example, some of the finest officers in the country, they are undermanned and overworked.

A few months back it was a prosecutor who killed himself after being exposed in an undercover child exploitation sting. Are we creating monsters as a society by continually exposing individuals (voluntarily) to child pornography and solicitation cases? Should there be continual review processes in place to ensure that the people we pay to protect our children are in fact doing so and not “falling off the wagon?”

I have no doubt that our law enforcement personnel are doing their job and it’s only a few bad eggs spoiling the bunch, but there needs to be some oversight to make sure that we weed out the bad apples and make sure we monitor those exposed to these crimes. This DCF arrest doesn’t spell the end to government workers involved in child exploitation scandals, the question is how is the government going to guard against it?

DCF Worker Accused of Using Children to Make Porn

In today’s day and age you would be hard pressed to find someone who doesn’t know how to use a computer. Computers are everywhere and control everything. So is it surprising to hear that according to the US Department of Defense, the volume of cyber crime grew by 54% in the last year. If you think about it, the target area, or the playground as some individuals might call it, as grown virtually in cyber space. Paper is a thing of the past and everything has gone high tech. Banks, credit cards, you name it and it involves a computer.

But the real question is, are the big companies the only ones that have to be concerned? The answer is clear. With a 54% increase in cyber crime, it is a problem that everyone has to take notice of. Small and medium sized enterprises should be more aware, to the individual working online with personal information.

As a defense attorney who specializes in cyber crimes, I get calls all the time from people who have had their personal websites hacked, to their identities stolen. Of course there are remedies and manners of redress that are available, but we as individuals have to be prepared. We have to take the necessary steps to protect ourselves from cyber crime. The governments can only do so much. The local police and government agencies are overworked, under financed, and under manned to deal with the increase in cyber crime. And the crimes that they do focus on are the high priority, high profile crimes, as they should. However, then who is left to look after the little guy?

You. So be mindful of where you enter your personal information. Protect your computers with the appropriate software, and trust no one. Your information is sacred and if you lose it, it will spell trouble for you.

Let’s think for a second what the ramifications would be like if Miami, or the Eastern Sea Board, or the United States was without internet and telephone communication…hmm…sheer and utter chaos? Probably. We have become a society dependent on technology; we will never be able to live without it. So how are we affected by the outages in the Mideast?

As a nation cognizant of its costs, numerous companies outsource work to the Mideast. Therefore, I am certain that this Mideast shut down is having a serious negative effect on companies’ worldwide. The problem may take weeks to fix, but the lost profits might take much longer to recoup. At the end of the day, who is to blame for this incident, and how can we see that it never happens again? What this has shown us is that our technological infrastructure can be breached, be accidentally or intentionally, governments have to aware of areas that can cause serious damage to a nation’s economy. At the end of the day who is to be held accountable?

Third undersea Internet cable cut in Mideast

Hollywood is getting into the act. The new so-called technological thriller is Hollywood’s take on cyber crime. The movie’s premise is a cyber-crime FBI agent who investigates killings, where the weapon of choice is the internet. The movie title “Untraceable,” attempts to give people a sense of what is actually capable of happening when using the World Wide Web. The possibilities seem to be endless, but are they? Maybe to a point…

But in the end, possible, reasonable, or Hollywood? Cyber crime is here to stay. The question is how are the agencies that investigate the crimes going to deal with them.

Media Credit: Photo courtesy of Sony Pictures

DAVID S. SELTZER, PA., is a Miami based law firm that represents the rights of individuals throughout the Nation, both in State and Federal Court. The firm handles matters including but not limited to: cyber crime and general criminal defense, real estate, divorce/family, immigration, corporate, complex computer litigation, and traffic matters.

The firm is located on Miami Beach, at:

1680 Michigan Avenue, Suite 919
Miami Beach, Florida 33139
Tel: 305.444.1565
Fax: 305.674.3805
Email: david@seltzer.ca
www.cybercrimesdefense.com (UNDER CONSTRUCTION)
www.seltzer.ca (UNDER CONSTRUCTION)

David S. Seltzer, PA