January 2013 Archives

January 23, 2013

Army General Facing Court-Martial

Brigadier General Jeffrey Sinclair is facing court-martial charges involving sexual misconduct. Sinclair recently served in Afghanistan, but was reassigned to Fort Bragg, North Carolina to face charges in a military tribunal. Sinclair served five combat tours of duty. Despite his excellent 27 year career service record, the military has decided to pursue charges. It is uncommon for general officers to be charged in the military. In recent times, only two general officers have faced courts-martial charges. Typically, general officers accused of misconduct are relieved from duty and forced to resign in lieu of being charged with a criminal offense. Sinclair's problem is that he was accused of a series of sexual misconduct with multiple parties. That may have been too high a number for the military to overlook.

In the military, accusations of this nature and others are investigated by CID (Criminal Investigative Department). CID agents are very similar to other types of the law enforcement officers such as FBI agents or homicide detectives. However, CID agents do not make the decision to arrest. That decision is solely the responsibility of the chain of command. Each member of the chain of command is supposed to independently recommend whether a soldier should referred to a court-martial and what type of court-martial should be pursued. The most serious type of court-martial in the general. Defendants face the statutory maximum as set forth in the Manual for Courts-Martial. Additionally, a defendant faces a dishonorable discharge either by way of a guilty plea or a conviction at trial.

There are two types of special courts-martial, BCD (bad conduct discharge) and straight special. The maximum amount of punishment under a special court-martial is six months of incarceration. With a BCD, a soldier can be discharged as part of his criminal sentence, whereas, in a straight special a soldier cannot be discharged. However, if a soldier is convicted of crimes charged as a straight special, the chain of command can turn to an administrative discharge. A summary court martial is punishable up to 30 days with no discharge. Like a straight special, a defendant convicted at a summary court-martial can be administratively separated for misconduct. The only type of court-martial that requires a preliminary hearing before charges are preferred is the general. Anyone charged with a general court-marital is entitled to an Article 32 investigation, which is like a mini-trial where evidence is presented to a hearing officer. The findings of the Article 32 investigation are delivered to the chain-of command to help determine whether charges should be preferred or in other words pursued.

The allegations against Sinclair were heard at an Article 32 investigation back in November. Apparently five woman submitted evidence of illegal sexual activity which occurred in such venues as Afghanistan, Iraq, Germany, and two bases in the United States. Some of the woman soldiers involved were officers who are also in jeopardy of losing their military careers and being prosecuted as well. One of the woman officers faces adultery charges. Anyone in the military and is married is forbidden under the UCMJ from engaging in sexual relations with other parties. While adultery is an archaic offense in civilian life, the military takes this offense seriously. More problems arise when higher ranking officers have sexual relations with lower ranking officers in their chain-of command. Soldiers can be charged with fraternization if they engage in this type of conduct. In sum, Sinclair is being charged with sodomy, another crime not usually charged in the civilian world, wrong sexual conduct, violating orders and adultery. His career is over, but will he spend anytime in Ft. Leavenworth is the question.

Army General at Military Hearing on Sex Charges, Miami Herald.com, January 22, 2012.

January 17, 2013

Hit and Run Driver Sentenced to Jail

A driver that struck and killed a bicyclist on the Rickenbacker Causeway was sentenced yesterday by a circuit court judge. The prosecution argued for a six year prison sentence. Apparently, the Miami criminal attorney representing the defendant convinced the judge that a six year sentenced was too harsh. Instead, the Miami-Dade County Circuit Court judge presiding over the case sentenced the defendant to 364 days in the county jail, followed by two years of community control. The defendant had already been in custody for a year when he was sentenced by the court. He was required to waive all his credit for time served in exchange for receiving the sentence. Family members of the deceased, as well as others, have complained that the sentence was too lenient. The defendant also happened to be on probation for possession of cocaine on the date of the offense.

The defendant allegedly struck two bicyclists at around 6 a.m. on the causeway. Rather than stopping his vehicle and attempting to render aid, he fled to his Key Biscayne condo. He returned home and reported the accident to his father. Rather than contacting the police, they placed a tarp over th vehicle to conceal the crime. A security guard at the condo called the police. Condo security cameras captured the heavily damaged vehicle enter the property with the defendant behind the wheel. Additional video captured the defendant unsteady on his feet walking through the parking lot and later returning to the vehicle with his father. The defendant was arrested for leaving the scene of the accident involving death, leaving the scene of the accident involving great bodily injury and driving with a suspended license.

In and of itself, the sentence is not outrageously low despite the complaints from relative and fellow bicyclists. The most surprising aspect of the sentence is the fact that judge gave little weight to the fact that the defendant was on probation at the time of the offense. Cocaine possession is a third degree felony punishable up to five years in prison. Defendants that violate probation on a third degree felony can be sentenced up to five years in prison if they are found to be in violation at a probation violation hearing. In any event, the judge, despite the probation violation, issued the aforementioned sentence over the objection of many.

The defendant was facing up to 35 years in prison which is the statutory maximum under the Florida criminal statutes. His guidelines were much lower as death points under the Florida Sentencing Guidelines are not applicable for leaving the scene of accident involving death. The defendant avoided possible DUI manslaughter charges which carries a significantly higher penalty than leaving the scene of the accident. Because the defendant was not apprehended until 18 hours after the accident, the evidence of impairment had already dissipated. The fact that the defendant was unsteady on his feet was not enough evidence to prove manslaughter as he had just been involved in a serious accident. Without a blood draw, which would have been taken at the scene had he remained, the prosecution had no ability to prove that the defendant was impaired to the point that he could not safely operate a motor vehicle.

Michele Traverso, Driver in Hit-and-Runthat Killed Aaron Cohen Sentenced to 364 Days in Jail, Huffington Post.com, January 17, 2013.

January 8, 2013

City Cop Set for Federal Drug Trial

A federal jury is scheduled to start this week where the U.S. government will prosecute a city cop charged with a variety of offenses including planting cocaine on a suspect and stealing drugs and money from local drug dealers. Raul Iglesias will appear with his Miami criminal lawyer in court on Thursday for opening statements. While federal criminal cases usually lack transparency prior to the trail, this case is a little more secretive than most. The majority of witnesses include several former Miami undercover detectives that used to work in the same unit as the defendant. The government prosecutor filed a special motion with the court seeking the that the judge restrict the disclosure of the names of witnesses, testimony provided at the grand jury, FBI reports, statements and undercover recordings. The defense attorney representing Iglesias agreed to the terms set forth in the motion.

The defendant was indicted earlier on multiple counts including conspiracy to possess cocaine with intent to distribute, obstruction of justice, making false official statements and for the violating another's civil rights. Iglesias was relieved of duty without pay in 2010 and is facing 20 years in a federal prison if a jury convicts him after hearing the evidence. The motion to keep the discovery secretive was granted in large part to prevent witness tampering and intimidation. The defense attorney in the case was provided all of the discovery, but was not permitted to discuss its contents with anyone. As the jury trial progresses all the evidence kept secret up to this point will become public.

There are many difference between state and federal criminal cases. The discovery process is far more complete in the state system. Anyone charged with a felony offense in the State of Florida is permitted to have his attorney take the depositions of the majority of witnesses expected to testify at trial. Depositions are not permitted under federal criminal system. Under the state criminal justice system, prosecutors are required to turn over all documents, statements or papers that are relevant to the case. The feds are required to turn over some, but not all of an documents or other evidence that will be introduced at trial. For example, any statements made by the defendant or co-defendants must be turned over prior to trial. Additionally, exculpatory evidence, as well as any agreements entered into by cooperating witnesses or defendants must also be turned over to the defense.

Iglesias, a City of Miami detective, was with the department for 18 years and was the head of the crime suppression unit when he was relieved of duty. The crime suppression unit's duties including the arrest and prosecution of street level drug dealers and drug traffickers. One of the former detectives in his unit was arrested and agreed to cooperate against Iglesias. The former detective scheduled to testify was caught with ten bags of cocaine and two bags of marijuana that were taken from an Allapattah business. In exchange for his cooperation, he was permitted to plead guilty to possession of a controlled substance and was sentenced to a year of probation. The indictment against Iglesias charges him with stealing or planting drugs on at least four occasions.

Miami Police Sergeant Faces Drug Trafficking Trial in Secretive Federal Case, Miami Herald.com, January 3, 2013.

January 2, 2013

Disbarred Lawyer Faces Charges in Federal Court

Federal prosecutors out of New Jersey have charged a disbarred Pinecrest personal injury attorney and three others with conspiracy to transport stolen firearms and conspiracy to sell stolen property. According to prosecutors and court documents, the former attorney somehow obtained seven guns which had been taken out of Iraq without permission. The guns purportedly belonged to Saddam Hussein's family. The Miami criminal lawyer representing the defendant said that his client believed that he obtained the guns legally and had the right to sell the firearms. The firearms were transported by a licensed Miami firearms dealer to New Jersey to be sold to the highest bidder.

Federal investigators with the Bureau of Alcohol, Tobacco and Firearms discovered that the defendant had contacted a man in Pittsburgh seeking an appraisal of the stolen firearms. The appraiser then contacted two men out f New Jersey in an attempt to sell the firearms. ATF agents became aware that the stolen items were on the market and attempted to have undercover informants purchase the weapons. The ex-lawyer shipped six of the seven guns to New Jersey to complete the sale. The informants were going to buy the guns for $160,000. The best defense strategy in a case like this is to argue that a defendant had no knowledge that the guns were stolen. The government will attempt prove knowledge of the stolen property through statements made by the defendant while the deal was being consummated. One of the informants is going to testify that the defendant told him that he was 100% certain that the guns were from Iraq.

Two of the firearms that were confiscated were two pistols that had bee stamped with the initials "Q.S.". Investigators believe that the initials belong to Qusay Saddam Hussein al-Tikriti, the deceased son of Saddam Hussein. Qusay was killed by American troops in Mosul back in 2003. Other weapons subject to forfeiture are a pistol from China with a Yemen flag depicted on the grip, two German pistols and two shotguns. Officials with ties to the Iraqi embassy in Washington, D.C. have acknowledged that the guns were misappropriated from Iraq and that they are fact the property of the Iraqi government. After his arrest, the defendant appeared before a federal magistrate at a bond hearing where he was released on $250,000 bail.

The strength of government's case will lie directly with the credibility of the government's witnesses. These witnesses must be able to convince a jury that the statements made by the defendant admitting to knowledge of the stolen property were in fact made. As long as the statements were not recorded, the credibility of the informants will be critical to the defense of the case. In general, an informant's testimony will almost always be tainted as informants are either working for pecuniary gain or to achieve a sentence reduction in their case.

Disbarred Miami Lawyer Charged with Selling Guns Stolen from Iraq's Hussein Family, Miami Herald.com, December 31, 2012.