April 2012 Archives

April 24, 2012

Coast Guard Interdiction Nabs Sub

While on routine patrol, a United States Coast Guard aircrew observed a sem-submersible craft commonly referred to as a "narco-sub". The aircrew radioed the information to two vessels which then attempted to intercept the sub. Prior to capturing the craft, the crew of four scuttled the vessel. Thirty of these types of vessels used for drug trafficking have been captured or sunk since 2006. Crews caught operating these vessels are typically prosecuted in federal court. Over the years South Florida and Miami criminal attorneys have represented those captured and indicted for cocaine trafficking and importation of cocaine.

This case was a little unusual as this narco-sub was discovered in the Caribbean where most of the previous craft have been captured or sunk in the Pacific. Southern Command which has been at the point in battling the importation of illegal substances from South America, claimed that the Honduran Navy played a large role in the detection of the sub. The vessel's interception was part of a larger joint operation called "Operation Martillo". The 2012 Central American Security Conference was held this week in El Salvador. The head of Southern Command, General Douglas Frazer spoke at the conference and applauded the operation and mentioned the need for closer regional ties which are necessary to disrupt the drug trafficking which originates in Central and South America. According to Frazer, 80% of the cocaine trafficking occurs via sea routes.

Cartels involved in transporting cocaine and marijuana have increasingly relied on semi-submersibles and submarines to move the illegal substances from South America to Central America and Mexico. The first craft was captured in 2006, but the federal government have been aware of their use since the mid-1990's. The vessels are manufactured out of lightweight fiberglass and are constructed in makeshift shipyards hidden in the jungle. The vessels are constructed to sit just above the waterline, making them difficult to spot by the human eye and even more difficult to detect using radar. Recently, the vessels have become so advanced that they can ride completely underwater for long periods of time. The first fully submersible vessel was captured carrying a haul from Ecuador.

According to the United States State Department, 60 vessels are consistently used to transport more than 300 metric tons of cocaine on an annual basis. That means that only a very small number of the vessels being used have been captured or sunk over the past 5 or 6 years. Despite the efforts of the United States and its allies in Latin America, drug trafficking in the Caribbean and the Pacific continue to be a real problem with no end in sight. Operation Martillo continues to attempt to interdict illegal drugs. Since its inception, 25 tons of cocaine has been seized and 50 people have been arrested. Ongoing cooperation between countries will attempt to prevent the transfer and importation of illegal substances, however, the cartels seem to continue to have the upper-hand in this cat and mouse game.

Coast Guard Seizes "Narco-Sub" in Caribbean, The Christian Science Monitor.com, April 23, 2012.

April 16, 2012

Sanford Case May Affect Self-Defense Across the State

The highly publicized Trayvon Martin case has caused concerns for opponents and proponents of Florida's "Stand Your Ground" law. Local criminal lawyers are concerned that the nationwide publicity garnered by the Martin case will somehow limit their clients' ability to prevail either at trial or during a pre-trial motion to dismiss. Some Miami defense attorneys believe that the highly publicized case will have a negative impact on judges and jurors alike. It is unfortunate that the media can play such a large part in determining the outcome of a criminal case. As most people know, the case stems from an incident that occurred between a neighborhood watch captain and local youth. Martin was killed during a struggle with George Zimmerman on February 26, 2012, in Sanford, Florida.

According to the media, defense lawyers must be concerned with the Trayvon factor in cases involving self-defense. Stand Your Ground has been an effective defense technique for individuals charged with violent crimes such as murder, manslaughter, aggravated battery and aggravated assault. According to Nellie King, the president of Florida Association of Criminal Defense Lawyers (FACDL), defense counsel will have to take precautions during jury selection in cases involving self-defense. In criminal trials, jury selection is often considered the most important segment. The purpose of jury selection is to find jurors that can be both fair and impartial to the state. In Miami-Dade County, judges use questionnaires to determine whether or not a potential juror would be fair and impartial. The prosecution and the defense are permitted to ask more detailed questions in an effort to find a proper jury. Defense lawyers representing clients basing their defense on self-defense must now inquire of jurors whether or not the Martin case will impact the decision they make regarding the case they over which they will preside.

The "Stand Your Ground" gives the power to the judge to determine whether or not a defendant should be immune from prosecution. The hearing is conducted outside the presence of jury and the judge is the sole finder of fact. If the judge believes that a defendant acted appropriately in self-defense within the bounds of the law, it is within his or her purview to dismiss the charge. If judge declines to dismiss the case, the defense can still argue self-defense to the jury. If the jury believes the defendant acted appropriately, then they will return an acquittal.

Opponents of the "Stand Your Ground" law believe that the law promotes vigilantes taking matters into their own hands. They also believe that the defense of self-defense is a matter that should be left up to jurors to decide. Public outcry has caused the governor of the State of Florida to appoint a special prosecutor to look at the facts of the case to determine whether or not Zimmerman should face murder or manslaughter charges. The appointment resulted from local law enforcement officers and prosecutors decision not to arrest or prosecute the case. In another note, the governor is and a panel elected officials have been appointed to review the law as it currently stands on the books.

Florida Defense Attorneys Fear Backlash in Self-Defense Cases,, Miami Herald.com, April 5, 2012.

April 9, 2012

South Florida Task Force Makes Several Arrests

The South Florida Internet Crimes Against Children Task Force made several arrests over a three day span. The operation headed by the U.S. Justice Department led to several cyber crimes arrests for charges including traveling to have sex with a minor and possession of child pornography. The sting was led by the Monroe County Sheriff's Office. Two men from Miami-Dade County purportedly traveled to the Keys to meet with what they allegedly believed to be an underage girl. As it turns out, as in so many cases, the underage girl turned out not to be underage, but was in fact an undercover detective. The defendants may hire criminal lawyers from Miami or from Monroe County. If they can not afford to retain a defense attorney, a representative from the Monroe County's Public Defender's Office will be appointed to represent the defendants. Due to a possible conflict of interest, one of the defendants will be represented by the Office of the Regional Counsel.

The South Florida Internet Crimes Against Children Task Force continuously runs operations throughout all of the counties in South Florida. The operations are usually conducted with multiple agencies on the federal, local and state levels. The current operations are targeting adult males who meet girls over the internet and attempt to engage in sex with minors. The other area being targeted is possession of child pornography. Florida Statute 847.0135(4)(1) is titled "Traveling to Meet a Minor". To prove the offense, the prosecution is required to prove that a person traveled or attempted to travel from a location with the purpose of committing certain sexual acts with a child or with a person believed to be a child. The person charged must have also seduced, solicited, lured or enticed a child to engage in unlawful sexual conduct. The crimes in the State of Florida is a second degree felony punishable up to fifteen years in prison.

Child pornography is encompassed by several Florida statutes. Child pornography is covered by Florida Statute 847.002, 847.011, 847.012 and 847.013. The child pornography statutes includes many illegal acts. Selling, lending or giving away, distributing, transmitting child pornography is a crime. Mere possession of child pornography is every bit a serious as the aforementioned offenses. Each of these crimes is a third degree felony punishable up to five years in prison. The important thing to remember when dealing with child pornography is that a defendant is subject to five years in prison for every image that is transmitted or merely possessed. Law enforcement officers typically serve search warrants to confiscate personal computers and laptops in an effort to recover child pornography. Anyone who engages in this conduct must erase images from their computers. To seize computers, investigators are required to obtain a search warrant, unless the computer owner consents to the search. Never consent to a search of your computer. Require a warrant before releasing computers and phones to the police.

Cyber crimes detection and prosecutions have become more common with the computer and internet age. As the problem of internet child related sexual offenses became more prevalent, the task force to prevent and detect internet crimes against children was created in 2008. The task force now includes more than 2,000 local, state and federal law enforcement agencies. Since the inception of the task force, more 30,000 arrests have been made. If a person is arrested for any of the above offenses, remember to never provide a statement to the police. A confession or admission is often the strongest evidence that can be obtained by investigators and will certainly be used by prosecutors to put someone in jail.

Miami-Dade Men Arrested, Meet Detective as Underage Girl for Sex, Miami Herald.com, April 9, 2012.

April 3, 2012

Immigration Authorities Arrest Thousands

Over a six day period, Immigration and Customs (ICE) agents arrested 3,168 foreign nationals. The crackdown is the largest since 2009. Of those arrested, 139 individuals were picked up in Miami-Dade, Broward and Palm Beach Counties. The majority of those arrested had criminal convictions for crimes such as murder, kidnapping, drug trafficking and certain sexual offenses. The large number of arrests will have immigration and criminal lawyers seeking ways to extricate family members from immigration custody. Others arrested by ICE agents were foreign nationals who have failed to comply with deportation orders or have illegally returned to the United States. Even though a person is being held by immigration authorities, all hope is not lost.

For years Miami criminal attorneys have represented foreign nationals set for deportation as a result of their criminal records by filing motions for post-conviction relief. While lawyers that specialize in immigration law are crucial to securing a person's release, more often than not, the problem lies with a criminal record that was acquired many years ago. Lawyers that practice in the area of criminal law are often contacted by immigration lawyers who request that criminal records be set aside. Over the years, the law regarding the rights of foreign nationals who enter no contest of guilty pleas to criminal charges have changed and the rights afforded to foreign nationals have been severely diminished. For example, the years ago, the Florida courts were instructed to advise defendants that if they entered a plea in a case, they could be subject to deportation. After the mandate came into effect, judges sometimes failed to advise defendants what were deemed "immigration warnings". On other occasions, transcripts of the plea colloquy were unavailable due to the age of the case.

If a judge either failed to warn a defendant about immigration consequences or a transcript proving that the warnings were provided no longer existed, a skilled defense lawyer could file a motion to vacate, thereby setting aside the criminal record. The motions were regarded as Peart and Green motions. However, after thousands of successful motions to vacate, the Florida Supreme Court set a cut-off date of two years after the plea was taken to file the motion for post-conviction relief. With that being said, foreign nationals with old convictions no longer have standing to file these motions in circuit court. The Supreme Court of the United States in the Padilla case, ruled that affirmative mis-advice from a criminal defense attorney regarding the immigration consequences of entering a plea could allow for a judgement and sentence to be vacated. The Supreme Court did not address whether the law applied retroactively, meaning that allegations of mis-advice could have occurred years before the ruling was handed down.

Certain appellate courts in the State of Florida have ruled that the law set forth in Padilla does not apply retroactively. Any plea taken prior to March 31, 2010, regardless of mis-advice of counsel, is not entitled to be vacated for that reason. The Supreme Court of Florida is currently deciding whether to apply Padilla retroactively. Obviously, if the law is held to be retro-active, a large number of foreign nationals facing deportation would have a legitimate chance to stay in the country if the appropriate motion is filed by an attorney and granted by the court. Unless the Supreme Court reverses the rulings of the appellate courts, motions to vacate have a limited chance of success. The best way to avoid deportation under the current state of the law is to present a mitigation packet to the prosecuting authority which contains records regarding a foreign national's children, tax returns, and letters from employers, friends and families stating the person set for deportation is worth keeping in this country to raise his or her family and to contribute to society. Effective mitigation packets can successfully allow for a judgement and sentence to be vacated. The result of course will depend on the charge to which a plea was entered. Simple drug offenses like cocaine or marijuana possession charges are more likely to be vacated than violent crimes like aggravated battery or sexually motivated offenses. Anyone trying to get a friend of loved one out of immigration custody must speak with a lawyer with experience in success in getting judgements and sentences vacated.

ICE Makes Record Arrests in Nationwide Crackdown, Miami Herald.com, March 2, 2012.