January 2012 Archives

January 30, 2012

Former School Athletic Director Charged with Additional Sex Crimes

A former charter school athletic director has been charged with seven additional sex crimes allegedly discovered by local law enforcement authorities. The defendant was previously charged with lewd and lascivious molestation of a twelve year old female victim. During the pendency of the case, a 17 year old female reported that she and the defendant had a unlawful sexual relationship. The defendant now faces 7 more counts of unlawful sexual activity with a minor. The defendant was arrested in Polk County on the new charges and was extradited to Miami-Dade County. The defendant is currently in custody and being held without bail on the second case. The arraignment on the new case is scheduled for January 5 where the defendant and his Miami criminal lawyer will appear in court.

In the case involving the 12 year old, the defendant is charged with two counts of lewd and lascivious battery on a child and one count of lewd and lascivious molestation of a child between the ages of 12 and 16. According to police reports, the defendant used his position as athletic director to coerce the girl to engage in unlawful sexual conduct. The crime of lewd and lascivious battery requires the state to prove that the defendant committed a sexual act with a victim, more specifically, that the defendant's sexual organ penetrated or had union with the sexual organs or the mouth of the victim. Neither the victim's past sexual history or the victim's purported consent is a defense to the sexual offense. Furthermore, the defendant's lack of knowledge of the victim's age, even if misrepresented by the victim, is also not a defense to the crime. The offense itself is a second degree felony punishable up to fifteen years in prison.

In the case involving the 17 year old, the defendant is charged with 7 counts of sexual activity with a minor. To prove the case, the state must show that the victim was 16 or 17 years old; the defendant was 24 years of age or older, and the defendant has sexual activity with the victim as defined above. The charge itself is also a second degree felony punishable up to fifteen years in prison. The defendant's knowledge of victim's age and the victim's prior sexual history are not defenses to the charge. The defendant is currently being held without bond on these charges. The offense itself allows for a bond to be posted. As long as the alleged criminal acts were not committed after the bond was set in the first case, the defendant should be entitled to a bond. If the state or corrections is improperly holding a defendant, an experienced criminal lawyer will demand a bond hearing before the presiding judge.

Although the defendant along with every other defendant charged with a criminal sexual offense is facing serious terms of incarceration, cases involving sex crimes can be effectively defended. As in all cases, the strength of a case will be based on the amount and quality of evidence gathered by law enforcement. Anyone being investigated or arrested for a sexual offense should seek the advice of a qualified lawyer experienced in defending these types of cases. The most damning evidence against a defendant is certainly a inculpatory post-Miranda statement. Anyone involved in a criminal investigation must remember that suspects have the right to remain to remain. The constitutional right should always be invoked at the earliest possible time. A taped or written confession seals a case for the state and allows for the state not to rely so heavily on victim's/witness's credibility. Be aware of your rights.

School Athletic Director in West Kendall is Charged with More Sex Crimes, Miami Herald.com, January 30, 2012.

January 24, 2012

GPS Tracking Requires a Warrant Says Supreme Court

In a controversial decision, the Supreme Court handed down a ruling that will assist defendants in fighting their charges and curtail law enforcement's ability to conduct surveillance on suspects committing criminal offenses. In a unanimous decision, the Court ruled that there are privacy interests involving GPS devices and that warrants may be required to obtain permission to use them. It is uncommon for Miami criminal attorneys to see cases involving GPS tracking devices, certainly on the state level. The case being heard in front of the Supreme Court came by way of Washington, D.C. A suspected drug trafficking kingpin was prosecuted with evidence obtained as a result of using a GPS devise. The case was reversed and remanded for a new trial.

According to the Court's opinion, all the justices agreed that the Fourth Amendment applies to GPS devices. Federal investigators attached a GPS to the defendant's vehicle and monitored his movements over a twenty-eight day period. Significant evidence was acquired through the use of device and helped convict the purported drug kingpin of charges serious enough to merit life in prison. The trial garnered a lot of media attention during its pendency. An appellate lawyer from Washington, D.C., filed an appeal on behalf of the defendant, specifically objecting to the use of the GPS devise. The government filed a response claiming that the use of a GPS device is no different than current forms of low-tech monitoring that are not protected by the Fourth Amendment.

While the decision of the Supreme Court was unanimous, the judges were split 5 to 4 on the basis for their findings. The Justice Scalia, representing the majority of the court, found that the attachment of the device was in and of itself unconstitutional. He specifically wrote, "We hold that the government's installation of a GPS on a target's vehicle, and its use of that devise to monitor the vehicle's movements, constitutes a search." The Court did not go as far to say all uses of a GPS device will be per se prohibited, but the use of any such device would be "risky undertaking". The court did not address other modern forms of surveillance devices and explained that they did not want to "rush forward" and make other decisions other than the issue at hand.

Surveillance has always been a primary means of gathering evidence for federal and local law enforcement agencies. Wiretaps have always been the most common form of intelligence gathering. As technology advances, law enforcement will seek to implement new ways to use that technology to prosecute individuals suspected of drug trafficking, money laundering, and other forms of organized crime. Anyone charged with a criminal offense that is supported by the use of surveillance equipment should discuss the case with an experienced criminal defense attorney familiar with the requirements federal law enforcement must comply with prior to obtaining evidence in this manner.

Supreme Court: Warrants Needed in GPS Tracking, The Washington Post.com, January 24, 2012.

January 19, 2012

Motion to Dismiss Murder Case Denied

Pursuant to the recently passed self-defense law of "stand your ground", a local circuit court judge heard a motion to dismiss filed by a well-repsected Miami criminal attorney regarding that issue. The defendant is a twenty-three year old man from New York charged with second degree murder accused in the stabbing death of homeless man outside a Miami Beach night club. According to court documents, the defendant came to Miami Beach in 2008 to party. Prior to entering a nightclub, the defendant purchased the ID belonging to the victim for $50.00. When the homeless man realized that a third party had taken his ID and sold it to the defendant, he went to retrieve the ID from the defendant. The victim allegedly threatened the defendant which caused him to flee into an alleyway. In the alley, a scuffle ensued between the parties. During the scuffle, the defendant took out a knife, stabbing the victim three times. At some point during the scuffle, the victim threw a book bag at the defendant.

After taking testimony and hearing arguments from the prosecution and the defense lawyer, the circuit court judge hearing the case denied the motion to dismiss. The judge found that the defendant was protecting the ID and not himself. He found specifically that " a reasonable person under these circumstances would have believed that if he had given the license back, it may have not been necessary to stab the victim." The lawyer representing the defendant intends on appealing the ruling as the law is still emerging and the order signed by the judge has issues to be raised at the appellate court level. Of course, the prosecution agreed with the ruling saying the judge was correct in his evaluation of the testimony and the evidence presented at the hearing.

In 2005, the Florida legislature amended Florida's self-defense laws to include "stand your ground". The law eliminated a citizen's duty to retreat if confronted with deadly force. Murder or other violent charges, such as aggravated assault and aggravated battery, can now be more easily defended with the new law. A defendant is justified in using deadly force if the defendant believed that the force was necessary to prevent imminent death or great bodily harm to himself or herself while resisting another's attempt to commit murder or any other enumerated violent crime against him or her. The defense can be argued in two ways. The first is through a motion to dismiss heard and ruled on by the judge. If the judge denies the motion, the attorney can argue self-defense to the jury who is the tier of fact.

Several cases have been dismissed throughout the state based on the "stand your ground" law. Last year, a Palm Beach judge dismissed a first-degree murder case involving a shooting that occurred as a result of a confrontation on a boat between the victim and the defendant. A Miami-Dade County judge dismissed a murder case that occurred outside and apartment in Hialeah. Later in the year, a Broward County judge dismissed a charges against a man accused of murdering his wife's former boyfriend. Several other cases are set to be heard at the trial level and the appellate level. The area of the law is evolving and with every case that is heard, different theories of self-defense will come to light. However the cases are ruled upon, the "stand your ground" law provides a defense to some defendants charged with violent crimes.

Miami-Dade Judge Shoots Down Self-Defense Claim in the South Beach Murder, Miami Herald.com, September 18, 2012.

January 12, 2012

Convicted Drug Trafficker Seeking Sentence Reduction

One of the most infamous Haitian cocaine trafficking kingpins will go before a federal judge and seek a significant sentence reduction for cooperating with federal authorities. The defendant will appear with his Miami criminal defense lawyers seeking at least a 50% cut from his current sentence. Beaudoin Ketant operated one of the largest cocaine trafficking rings in Haiti until he was expelled by Jean Bertand Aristide in 2004. The expulsion from Haiti came at the request of the United States government. Federal law enforcement officers traveled to Haiti and the flew the defendant out of the country. The U.S. Attorney's Office indicted the defendant on charges of importation of cocaine and conspiracy to do the same. The indictment alleges that the defendant was responsible for the importation of in excess of 30,000 kilograms through locations such as Florida and New York.

Defendants charged in federal court will often have the ability to reduce their prison sentences by cooperating with federal prosecutors and other law enforcement officials. Prior to cooperating with federal authorities, a skilled defense attorney should thoroughly review a case, the evidence supporting the case and all discovery provided by the prosecution. After reviewing the case with the client, the decision whether or not to cooperate must be made. In the majority of cases, there is not much time to make this decision for a variety or reasons. First, federal judges move cases along at a rapid pace. Secondly, as time goes by, co-defendants will come forward to cooperate, dissipating the clients usefulness. Law enforcement wants new and fresh information that will lead to other prosecutions.

The rules for sentence reductions in federal court can be found in the United States Sentencing Commission Guidelines Manual. Section 5K1.1 provides for a sentence departure for substantial assistance to law enforcement authorities. The government must make a motion prior to a guilty plea being entered by the defendant. The motion must set forth that the defendant has provided substantial assistance in the investigation or the prosecution of another person who has committed an offense. The ultimate decision to a reduce a sentence and by how much is left up the judge. The judge will consider the significance, usefulness truthfulness and reliability of the information, the nature and extent of the assistance, and the timeliness of the substantial assistance. A defendant can also seek a reduction after a sentence has been imposed. A defendant can seek a reduction under Rule 35 for substantial assistance after a sentence has been handed down. The defendant in this case is seeking a reduction under the latter category.

According to prosecutors and defense lawyers, the defendant is going to receive a significant sentence reduction. Despite his serious involvement in drug trafficking, the defendant could see his term cut in half as his substantial assistance has led to 50 convictions of other Haitian nationals involved with cocaine trafficking and money laundering. His information has led to the successful conviction of both cocaine traffickers and individuals charges with taking bribes. The most interesting claim made by the defendant named Aristide a co-conspirator in the drug trafficking operation. The defendant purportedly paid Aristide money to allow the cocaine to travel smoothly in and out of the country. Haiti was a major hub moving cocaine from Columbia to the United States.

Haitian Drug Kingpin Prosecuted in Miami Could Get Big Cut in Prison Sentence, Miami Herald.com, December 21, 2012.

January 5, 2012

Ex-Cop Takes Plea to Reduced Charge

A former local police officer recently entered into a guilty plea to one charge of child abuse, no great bodily harm. The case stemmed from allegations that the ex-cop would fondle young girls during traffic stops. The defendant was originally charged with two counts of lewd and lascivious battery on a minor, but entered a guilty plea to the reduced charge negotiated by his Miami criminal attorney. According to court records, multiple other victims came forward on the case, but they were only to be used as witnesses. The prosecution intended on bolstering their case by presenting what is typically called Rule 404 evidence. Under the Florida Rules of Evidence, Section 90.404(2)(a), the prosecution can use similar fact evidence of other crimes, wrongs, or acts when relevant to prove a material fact in issue. The fact evidence sought to be used includes proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. However, the evidence may not be used for the sole purpose of establishing the bad character or criminal propensity of the defendant.

Rule of Evidence, Section 404(2)(b), applies specifically to child molestation cases. In a criminal case, involving a child sex offense, the prosecution can admit evidence of the defendant's commission of other crimes of child sexual abuse. If the prosecution intends on seeking to admit Rule 404 type of evidence, they must inform the defense lawyer and the client no fewer than 10 days before the trail commences. The prosecution must provide a written statement to the defense containing the offenses they seek to admit with as much specificity as required in an information or indictment. If a jury is allowed to hear the Rule 404 evidence, they will be specifically instructed as to the limited use of the evidence.

The case against the defendant broke down when one of the victim's alleged in a charged offense admitted that she had made up allegations of sexual abuse in a separate unrelated case. With the victim's credibility in question, the state dropped that count of lewd and lascivious conduct and pled the case out to a lesser charge with probation. According to the state, the case became very weak without that charge, which in turn led to the plea offer. The defendant entered a guilty plea and received a withhold of adjudication and 5 years reporting probation and was also required to surrender his police officer certification papers. The defendant is also required to complete a treatment program for sexual offenders as part of his probation. At the conclusion of his probationary period, the defendant will not be able to seal his record as aggravated child abuse is not a sealable offense under the Florida Statutes.

The question remains whether the defendant will be categorized as a sexual offender. While aggravated child abuse is not an offense that can cause a person to become labeled a sexual offender, the final word will be left up to the Florida Department of Law Enforcement (FDLE). Experienced defense lawyers know that a charge reduction to a non-sexual offense does not mean that a defendant will not be labeled a sexual offender. FDLE reviews arrest affidavits and not necessarily the charges when making that decision. They will consider the facts surrounding the case in making that determination. If a defendant is deemed to be a sexual offender by FDLE, many onerous restrictions will be put in place, including, but not limited to, where a defendant may live, being posted on the internet, and quarterly reporting requirements.

Former Miami-Dade Cop Takes Plea in Fondling Case, Miami Herald.com, December 29, 2011.