August 26, 2010

Trial Begins for South Florida Police Officers

Two former police officers began their trial this week in state criminal court accused of stealing money from drug dealers. Daniel Fernandez and Joe Losada, both former Miami-Dade police officers, are charged with grand theft and official misconduct. The prosecution characterized the defendants as officers that were stealing money from victims that were drug dealers or that had criminal records because law enforcement authorities would not believe victims with checkered pasts. The Miami criminal lawyers representing the defendants told jurors that their clients were actually the victims of a witch hunt and that the state's witnesses had credibility issues.

Both police officers wee members of the Miami-Dade County Police Department's Crime Suppression Team, and in fact, Fernandez was even named officer of the year in 2004. The defendants were arrested in 2006 when they were allegedly caught up in an undercover sting where they took $970 in marked bills from a fictitious crime scene. The internal affairs department orchestrated the bust by enlisting two men who had previously made complaints against the officers. One of the informants has a criminal past for drug possession and drug sales while the other informant also has a criminal record.

While the marked bills may be an issue at trial, it will be interesting to see if the state's key witnesses can survive what is certain to be a withering cross-examination by the criminal defense attorneys. In their opening statements, counsel for the accused regarded one of the informants as being involved in money laundering and drug trafficking. This particular defendant owns approximately $1,000,000 in real estate allegedly amassed by purchasing properties and fixing them up himself. The other informant has issues with a recent arrest for cocaine possession. Despite the arrest, the informant served a minuscule sentence in exchange for continuing to assist in the prosecution of the former Miami-Dade police officers.

The attorneys for the defendants have offered up explanations for the marked bills. One of the lawyers proposed that his client only held the marked bills for a few minutes before turning them over to another officer to be impounded as property. The lawyer for the second defendant explained that one of the officers had some of the money in his pocket, but that he received from another officer a the scene who owed him money. The case against the two officers has lingered for 4 ½ years, but the trial is expected to be concluded sometime next week.

While the arrests of the officers are unfortunate, other Miami criminal defense lawyers have used the case to their benefit. In many cases, other defendants have had their charges dropped or have received good plea offers because these officers were the only witnesses to the crime. In every case where police officers testimony is critical to proving the charges, defense counsel should request the internal affairs records of any officer whose credibility is at issue. Internal affairs documents are a public record and can be requested by anyone.

Theft Trial of Ex-Miami-Dade Officers Begins, The Miami Herald.com, August 26, 2010.

August 24, 2010

Local Public School Teacher Charged with DUI

A local South Florida elementary school teacher was arrested on August 4, 2010 for the offense of driving under the influence (DUI) and other felony charges. Police officers from the Homestead Police Department indicated in the arrest affidavit and accompanying reports that Joann Tomas, of Dr. Williams Chapman elementary school, was weaving in an out of traffic when she was pulled over to the side of the roadway. The police officers noticed that the defendant had watery eyes, a flushed face and slurred speech. Tomas had difficulty finding her driver's license, registration and proof of insurance. While exiting the vehicle, she lost her balance and had to use the vehicle to support herself to prevent falling to the ground. The officers requested that Tomas perform field sobriety exercises to determine if she was impaired. The officer directing the exercises determined that she did not perform to standard and arrested her for DUI. A Miami criminal defense lawyer that defends DUI cases will tell you that this is a pretty standard report filed by police officers. However, in many cases, even if an arrest affidavit alleges facts that appear to be unbeatable, there are still defenses to a case of this type.

The first thing that should be looked into when establishing a defense to DUI is to examine the driving pattern in a particular case. While weaving in and out of traffic and failing to maintain a single lane are not the best factual scenarios when defending a DUI, speeding and following too closely are not driving patterns that indicate that a driver was impaired. To properly evaluate a case, defense counsel must look at the reason for the initial stop. In some instances, if the officer did not have a reasonable suspicion that a traffic infraction had been committed, a motion to suppress should be filed, and if granted, would preclude the prosecutor from introducing any evidence that was obtained as a result of the illegal stop. As in any drug possession or drug trafficking case, if a motion to suppress is granted, the state can not proceed to trial as the majority of the evidence collected by the police is inadmissible at trial.

Another bit of evidence that the police and the prosecutor like to hang their hat on are the physical characteristics of the defendant noted by the police officers. The favorite buzz words used by the police are flushed face, bloodshot eyes and slurred speech. There are a number of explanations that can be presented to a jury explaining these conditions. For example, a day out in the sun can result in a flushed face or bloodshot eyes. Slurred speech can be attributed to a strong accent or a medical condition. Of course, officers always note that the driver had a strong odor of alcohol coming from his or her breath. But any honest officers will testify that the odor does not indicate how much or what a person had to drink.

Roadside exercises are difficult to perform drunk or sober. The results of the exercises are very subjective. The best course of action for anyone pulled over for a DUI investigation is to refuse to perform the exercises. While this course of action will lead to an arrest, keep in mind that the officer will probably make the arrest anyway, so why not improve your chances in court. The same goes for the breathylizer. While a refusal will result in an arrest, a breath reading over .08 is more difficult to overcome in court. If you blow .00, the officers will request that you give a urine sample to see if you have any drugs in your system. Refuse that test as well. It is much easier to get a favorable result in state criminal court on a double refusal case, than a case in which roadsides were performed and a breath sample taken. Also remember, invoke your rights to speak to a criminal attorney. Any statements proved to the police regarding alcohol consumption will be used in court to prosecute the case.

Always remember to be polite. Tomas became confrontational with the arresting officers. At the jail, she removed her handcuffs and allegedly threw them at an officer. It is also alleged that she kicked an officer in the groin and attempted to punch another. As a result of her actions, she was also charged with battery on a law enforcement officer and resisting an officer with violence Remember, it is difficult enough to beat a DUI charge, do not compound the problem with more serious felony charges.

Miami-Dade Teacher Jailed in DUI Case Won't be Returning to Class, The Miami Herald.com, August 18, 2010.

August 23, 2010

Doral Implementing Measures to Fight Property Crimes

Doral has recently been with a flurry of large ticket property crimes such as burglary and grand theft which has resulted in hundreds of thousands of losses to victims. Recently, offenders opened the roof to a cell phone store with a blow torch and lowered themselves down with ropes and avoided touching the floor which would have set off the alarm system. The offenders made off with $500,000 worth of inventory. According to the Doral police chief, this the fifth burglary of this type to occur over a seven month time period. The police chief said they have suspects on numerous burglary charges, but are continuing the investigation in an effort to gather more evidence. If arrests are made, it would behoove the suspects to invoke their right to remain silent and seek to retain Miami criminal defense attorneys to defend their cases.

There has been a rise in the number of burglary and grand theft cases from January to July of this year. In fact, 95 burglaries have been committed over the past six month which on average is one every two days. Along with the burglaries to businesses, 443 auto thefts and 75 dwelling burglaries have been reported to the Doral law enforcement. Dwelling burglary charges are very serious offenses and are treated that way by the Miami-Dade County State Attorney's Office. This offense is a second degree felony punishable up to 15 years in prison. More importantly, burglary to a dwelling is a level 7 offense which under the Florida sentencing guidelines carries a minimum sentence of 21 months in prison. Burglary to a structure which is the technical definition for burglary to a business is a third degree felony and does not carry a prison sentence for first time offenders. However, if more than $100,000 in property is taken, the defendant can be charged with grand theft first degree which does carry a prison sentence.

What is Doral doing to curb the number of burglary and grand theft offenses? First, they are attempting to implement two security plans which are models for large cities such as New York, Washington, D.C. and London, England. Doral intends on installing video cameras at 17 locations which covers the ingress to and egress from the City of Doral. They also intend on installing 14 video cameras at the public schools within the district. The video camera installation will take about a year and will be monitored at police headquarters. Doral is currently using three video cameras to monitor local parks. Although expensive, the federal government is going to subsidize $500,000 of the costs for the security system. The cameras being installed are high-resolution which can actually record license plate numbers.

The first video cameras will be installed in the industrial and business areas of Doral from 36th Street to the Dolphin Expressway and from Palmetto Expressway to the Florida Turnpike. The system being installed is much more sophisticated than the current systems used to enforce traffic laws. The system will be installed and maintained by a private company. It will be interesting to see if the installation curbs the number crimes against property within the Doral area. Of course, by going public with the information, offenders may seek more fertile ground that is not guarded by upgraded security measures.

Doral to Boost Security after Spectacular Heists, The Miami Herald.com, August 18, 2010.

August 19, 2010

Local Couple Arrested for Child Neglect

A husband and wife were each arrested for one count of child neglect. Both defendants appeared at bond hearing and received a $7,500 bond which is a standard bond for a third degree felony. Yoselin Aguirre was able to post the bond and has since been released from the Miami-Dade County Jail. Roberto Fortin has yet to post the bond and remain incarcerated. Both are charged with failing to care for Fortin's 7 year-old child to the point where he was hospitalized and remains in critical condition. However, if the child expires the defendants could be facing involuntary manslaughter charges. At this point in the case, the defendants are each represented by a Miami criminal defense lawyer from the public defender's office, but at any time can retain private counsel.

Aguirre was able to post the bond with the assistance of a local bondsman. In state court cases, bonds can generally vary from $500 to $500,000. Obviously, the amount of the bond will go up depending on the severity of the charge. For example, a bond in DUI case is $1,500 while a bond on a cocaine trafficking case can and sometimes will exceed $250,000. Most people to do not have the financial resources to post an expensive bond themselves. To post a bond without the assistance of a bondsman, a person must pay the entire amount to secure the release of a defendant. To post a bond with the assistance of a bondsman, the bondsman will require that 10% premium be paid for him or her to post the bond. Generally, the 10% premium will be enough for a bondsman to post the bond. However, if a person does not reside in Miami-Dade County, the bondsman may require collateral in order to write the bond. The reason lies with the fact that if a defendant does not return to face charges, the bondsman is on the hook for entire amount of the bond.

While both defendants are only now charged with third degree felonies, the facts of the case are more serious than in the run-of-the-mill child neglect cases. The defendants are accused of failing to properly care for the child. According to the arrest report, the defendants failed to feed the child and provide medical care on his behalf. Upon arriving to the hospital, the child weighed half of what a child his age should weigh and had lesions all over his body. Aguirre claimed that she knew the boy was sick, but had no responsibility since she was the child's stepmother. Aguirre has a prior record for aggravated battery on an elderly person. Fortin has a record for aggravated manslaughter. Court documents revealed that he was present when his nine month old child drowned in a bath tub.

Despite the allegations, both defendants can not be charged with a more serious offense unless the child expires. To charge a person with aggravated child abuse, the state must be able to prove beyond a reasonable doubt that a defendant committed an aggravated battery, willfully tortured, maliciously punished, willfully or unlawfully caged, a child, or caused great bodily harm to a child as a result of child abuse. Police reports due not describe facts that will allow the couple to be charged with this offense. Either way, the case will become a focus of the state attorney's office due to the media attention the case has received.

Step-mom in Miami Child Neglect Case Bonds Out, Dad Remains Jailed, The Miami Herald.com, August 17, 2010.

August 18, 2010

Heat Player Arrested on Felony Marijuana Charges

A pro NBA player was arrested on Sunday after been pulled over on a routine traffic stop. Udonis Haslem, the driver of 2008 Mercedes, was arrested for felony possession of marijuana while his passenger was arrested for misdemeanor possession of marijuana. The criminal defense lawyer representing Haslem told reporters that his client intends to fight the charges and that he was wrongfully arrested. A Florida Highway Patrol officer pulled over Haslem for speeding on the Gratigny Parkway. The officer allegedly approached the vehicle and smelled a strong odor of marijuana. The officer requested consent to search the vehicle which was granted by the driver and owner of the vehicle. The trooper discovered three containers of marijuana in a duffel bag. The duffle bag also container papers belong to the passenger of the vehicle. The passenger also admitted that the duffel bag and the marijuana belonged to him.

While the case on its face seems simple, there are a number of lessons to be learned. Any qualified Miami criminal defense lawyer knows that a person cannot be charged with possession of any illegal substance unless he or she had actual or constructive possession of that item. Actual possession is defined as when the item is in the hand of or on the person of, in a container in the hand of or on the person of, or when the item is so close as to be within ready reach and is under the control of the person. Constructive possession is defined as when the controlled substance is located in a place over which the defendant has control. In a constructive possession case, the prosecutor must prove that the defendant had control over the area where the controlled substance was located, but most importantly that the defendant has knowledge that the controlled substance was within his presence. It obvious that Haslem never had actual possession of the marijuana, it is almost as obvious that constructive possession will be an issue for the prosecution. While the marijuana was clearly in the vehicle owned and operated by Haslem, they cannot prove that Haslem had knowledge of its presence, especially in light of the documents found in the duffel bag and statements provided by the passenger.

The other thing to be learned in the case is to never consent to the search of your vehicle. If a police officer requests consent your vehicle, always decline unless you are absolutely sure your vehicle does not contain illegal contraband. If you are in doubt, don't consent. The investigating officer will have no choice but to get a warrant or at a minimum bring in a K-9 unit in the hopes that the dog will alert to some illegal substance. If the dog alerts, a warrant will not be necessary as there is a warrantless search exception called the "automobile exception". Due to the ambulatory nature of a motor vehicle, and officer will often times have the right to search your vehicle as long as they can establish probable cause to believe the vehicle contains an illegal substance. Officers will many times promise not to arrest you if you allow them to search your vehicle. Remember, the police often make hollow promises and will arrest you if they find cocaine or marijuana in your vehicle.

While Haslem and his passenger are not charged with the most serious of offenses, felony marijuana possession is a third degree felony punishable up to five years in prison. Misdemeanor marijuana possession cases a first degree misdemeanors punishable up to 365 days in the county jail. While these are not serious offenses, non-citizens convicted of the offenses are subject to deportation if they enter pleas or are convicted by a jury. If you are charged with any of these or related offenses, it is imperative to contact a criminal law firm with expereince in defending these types of cases.

Miami Heat's Undonis Haslem will be Vindicated, The Miami Herald.com, August 16, 2010.

August 16, 2010

College Basketball Player Opts for Pre-Trial Diversion

The pre-trial intervention (PTI) and pre-trial diversion (PTD) programs were created by the legislature in the State of Florida in an effort to offer first-time offenders a way to avoid a criminal conviction. The pre-trial intervention program applies to felony offenses and the pre-trial diversion applies to misdemeanor offenses. A former Miami-Dade Community College basketball player now attending the University of Minnesota, entered into the program to finally resolve his criminal charge of aggravated assault. The Miami criminal defense lawyer representing the defendant told reporters that his client entered the program as a matter of convenience despite the fact he believed the case would be won in front of a jury.

Trevor Mbakwe has been facing charges since April 2009, for the alleged aggravated assault of a local woman. The case was open for more than a year when the defendant agreed to enroll. The pre-trial intervention requires a 6 month enrollment where a defendant is required to complete special conditions. If a defendant completes the special conditions within the 6 month time period and can avoid any additional felony or misdemeanor arrests, the local state attorney's office will nolle pros or dismiss the charges. The defendant in this case is required to complete 100 community service hours and donate $100 to a victim's shelter.

In general, only certain third degree felony offenses are eligible for pre-trial intervention enrollment. For example, defendants charged with grand theft and burglary of a structure are eligible and are typically offered PTI. Sometimes, even individual charged with violent crimes such as aggravated assault, aggravated battery, battery on a law enforcement officer (LEO) or resisting an officer with violence can be offered the program. The state attorney's office will offer PTI in more serious cases, if the evidence in the case is weak. Remember, that the victim is required to approve the defendant's enrollment in the program. The more experienced and qualified Miami criminal defense law firms are better suited to get PTI enrollments on serious cases. While the prosecutor may not be initially amenable to a PTI resolution to case, if a defense attorney can significantly weaken the case through the discovery process, a PTI offer on serious charges can be obtained.

The special conditions that are required to be completed vary and generally depend on the offense for which an individual is charged. For example, in domestic violence cases, the battery intervention program will be a requirement. For violent offenses that are not domestically related, such as aggravated assault and aggravated battery, an anger management program will be required. For crimes against property, such a grand theft, a values class will be required to be successfully completed. Additionally, the state attorney's office will require the completion of community service hours and donations to local charities. The only shortfall with Miami's program is that they do not offer the program for felony drug cases like cocaine possession or possession of oxycodone or Xanax. In those types of cases, the defendant is required to complete a year long drug court program that is highly intensive and time consuming. While the program is better suited for people with drug problems, occasional users would be better suited in the PTI program.

Trevor Mbakwe Avoids Trial, ESPN.com, August 12, 2010.

August 13, 2010

Arrests Made at MIA for Cocaine and Heroine Trafficking

In largest drug bust at Miami International Airport since 2007, federal agents arrested 15 people on charges related to cocaine trafficking and heroine trafficking on commercial flights from Panama, Columbia and Venezuela. Federal law enforcement are still trying to find 13 other individuals purportedly located in Miami area, while others are located outside the country. For years, Miami criminal defense attorneys have represented clients that attempt to smuggle drugs into the country from Latin American countries on commercial flights.

The unsealed indictment alleges that the drug trafficking ring has been importing drugs through the airport since 2006. Many of the indicted defendants are cargo handlers at MIA. The investigation and arrests were made by Immigration and Customs Enforcement (ICE) after a lengthy 5 year investigation. The Miami cargo handlers are accused of diverting the cocaine and heroine away from the U.S. customs inspection area to avoid detection. The federal law enforcement agents intercepted 204 kilograms of cocaine and 4 kilograms of heroine along with $74,000.00 in U.S. currency. The feds will mostly like seek an asset forfeiture of the cash in a civil asset forfeiture proceeding.

It seems as if the feds uncover elaborate drug trafficking schemes every 3 or 4 years at the airport. In 2007, ICE agents made numerous arrests of cargo workers who were also diverting drug laden cargo away from customs inspection points. Many drug traffickers along with the workers were arrested for their involvement in the South American drug trafficking ring. In 2005, DEA agents uncovered a drug trafficking network involving Haitian police officer, politicians, and airline employees that were moving cocaine for a Columbia organization. In 1999, federal authorities arrested 30 individuals along with American Airline and Sky Chef employees moving cocaine in carry-on baggage and in food carts.

The 15 people arrested appeared for their initial appearance in federal court on Friday. While most of the defendant were granted some form of pre-trial release, all of the defendants had to meet the "Nebbia" requirement prior to securing their release. A "Nebbia" requirement, simply put, requires that the person posting the bond show the money and property used to secure the release comes for legitimate sources and are not proceeds from drug trafficking operations. "Nebbia" requirements are also required to be met in state narcotics trafficking cases. Even if the defendants are able to make bond, the defendant face extensive minimum mandatory charges on the trafficking and importation offenses. The defendants that agree to cooperate early on the case, will receive safety valves which will allow for the waiver of the minimum mandatory sentences if they have no prior record. Those who cooperate in the prosecution in ths case or others will also receive sentence reductions for their cooperation.

15 Arrested in Drugs Operation at Miami International Airport, The Miami Herald.com, August 13, 2010.

August 10, 2010

Medicare Fraud Task Forces Set to Expand, Supported by Congress

The federal government is getting ready to once again increase their efforts to eradicate or at least reduce Medicare fraud. President Obama has requested $1.7 billion to investigate and prosecute healthcare fraud. The money will be used to triple the numbers of investigations into Medicare fraud rings. The money which is part of the 2011 spending bill for Health and Human Services will increase by more than $250 million. Almost half of the budget is intended expand the number the Medicare fraud task forces from seven to 20 cities. With the increased budget, Miami criminal defense attorneys will continue to see numerous arrests and indictments being filed in federal court.

Private healthcare companies are applauding the increased spending. United Health Group, Humana, Inc., along with other private insurer's claim to suffer losses as a result of healthcare fraud, much like Medicare and that increased spending will help reduce the number of fraudulent claims they receive and may ultimately pay. The increased budget will also be used to pay for information-technology upgrades which includes software used to detect fraud. Only time will tell if the two pronged approach to combating healthcare fraud will reduce the amount of fraud in the system.

The current Medicare fraud task forces have stopped schemes to defraud the federal government out of $1.9 billion. The investigations have led to the arrests and indictments in federal court of over 800 people. Investigators claim that is impossible to calculate the amount of defraud that the task forces have prevented. The task forces appear to being working both in Miami-Dade and Broward as South Florida saw a $1.2 billion decrease in the purchasing of home healthcare medical equipment.

With the bloated deficit in this country, many oppose the increased spending in the battle against healthcare fraud. The President and his staff claims that the anti-fraud budget increase will pay for themselves eventually over the next decade. Proponents of the increased spending programs do not believe that additional task forces should be created, but that the existing task forces that exist in Miami, New York and Loa Angeles to name a few should be beefed up to battle the hotbeds for Medicare and healthcare fraud.

The good news is that the legislation is stuck in Congress due to partisan infighting which is not uncommon with our current legislation. If there is a shift in the majority of the House of Representatives or Senate, the passage of the bill will be all that more unlikely. Whether the bill is past or not, you can believe that the task force working South Florida will continue to investigate and make arrests in these types of cases. If you are contacted by law enforcement regarding a fraud investigation contact a criminal as soon as possible to protect your rights. The sentences being handed down in South Florida federal court generally range from 30 to 60 months depending on the amount of the loss to the government.

Government Fraud Strike Forces to Expand under Obama Spending Plans, Bloomberg.com, August 6, 2010.

August 9, 2010

State Attorney's Office Re-files Charges against Mother and Son

Although uncommon, the state attorney's office on occasion will re-file charges in criminal court on cases that have been previously "no actioned" or "nolle prossed". A no action occurs after an arrest has been made, but the prosecutor decides that there is not enough evidence to proceed with the case and the case is never filed. A no action is every Miami criminal lawyer hope for their clients as the charges are dropped quickly and expeditiously. After a case has been no actioned it is eligible for a sealing or expungement. The lack of evidence to support a case can result from victims and witnesses failing to appear at their pre-file conferences, or the police had probable cause to make an arrest, but after reviewing the evidence the screening prosecutor does not believe the case can be proven to a jury beyond a reasonable doubt. Another reason that a case can be no actioned is because the police conducted an illegal search and seizure, thus making the evidence recovered inadmissible in court.

A nolle pros occurs after charges have been filed, but the prosecutor for various reasons can not proceed in the case and dismisses the charge levied against a defendant. Most nolle prosses occur a result of victims and/or witnesses failing to appear or being unavailable for trial. Often times, prosecutors will nolle pros a case because the discovery process driven by the criminal lawyer leads the State to believe they cannot prove their case beyond a reasonable doubt to a jury. A nolle pros can occur at any stage of a criminal court case, even after a jury has been selected in the case. While a nolle pros is not as good as a no action, this result will also allow for a case to be sealed or expunged.

It is important to remember that even if a case results in a nolle pros or a no action, the prosecutors office handling the matter can and will re-file charges as long as certain things have not occurred. First off, the state cannot re-file charges if the statute of limitations has run or the speedy trial time has expired. Also, to re-file a case, the defendant must be properly served with notice to be in court. Re-files mostly occur in driving under the influence or DUI cases. Many times, police officers will fail to appear for trial, but the state will try to reserve the defendant in the hopes that the officers will appear for trial at a later date. On other occasions, victims or witnesses fail to appear for the pre-trial conferences, but will later appear to speak with prosecutors once they realize the chargers have been dropped. The decision to re-file charges is within the sole discretion of the prosecutor.

In a recent case, a mother and son were arrested on charges of resisting a police officer without violence. This type of charge is usually prosecuted in county court, unless the defendant was also charged with a felony offense. Prosecutors dropped the charges against Anna Ramirez and her son Hernando Yunis. The criminal defense lawyer representing the defendants convinced a prosecutor to nolle pros the charges. The police officer later complained which caused the State to re-file the charges. The State claimed that the case was nolle prossed in error, but it was probably re-filed at the request of the police officer. Unfortunately, prosecutors succumb to the pressure of a victim's demand rather that explaining to them that the case should not proceed to trial.

Charges Re-filed in Florida Stun-Gun Case, UPI.com, August 9, 2010.

August 6, 2010

Former Army Sergeant Sentenced on Child Pornography Charges

Child pornography is a criminal offense that state and federal prosecutors take very seriously. At both the state and federal levels, prosecutors' offices have established specialized units that deal with child pornography and child sex abuse. The severity of the charge of transporting child pornography was evident in the case of a former army sergeant who was sentenced last week to 186 months or 15 ½ years in prison. Mark Anthony Garcia was charged with transporting and sharing videos and images of child pornography through the internet. Child pornography is one of the most common and serious internet offenses. Anyone charged with any type of child sex abuse case should contact a Miami criminal lawyer with experience in defending these cases as a conviction carries serious consequences.

Garcia's arrest was the result of an investigation conducted by an undercover detective from the Boynton Beach Police Department attached to the South Florida Internet Crimes against Children Task Force. The detective conducted an undercover sting operation and received an invitation to receive child pornography from the defendant. The defendant offer to transfer images and videos containing child porn to the detective. The detective downloaded the information to his computer. Army investigators called CID investigators in Germany also assisted with the investigation by arresting the army sergeant. The CID agents were able to obtain a confession whereby Garcia admitted to transporting child pornography via the internet.

But for his statement, law enforcement would have had a difficult time proving the charges against Garcia. Without his confession, the criminal attorney representing Garcia could have alleged that an other individual used his computer to download and transmit the information. Under military law, service members have many of the same rights as civilians. Military law enforcement have to advise service members of their Article 31 rights which include the right to remain silent and the right to counsel. Apparently, the military declined to prosecute the case and administratively discharged Garcia. Many times, the military will decline to prosecute, if local, state or federal government agencies elect to conduct the prosecution.

Under Florida law, child pornography is defined as any image depicting a minor involved in sexual conduct. The offense applies to anyone that knowingly sells, lends, gives away, distributes, shows, or transmits images, videos, books magazines or any other form of communication that contains child pornography. The crimes is a third degree felony punishable up to five years in prison. Keep in mind that each image transported is a separate offense. For example, if an individual sends five images of child pornography via the internet, a defendant will be facing up to 25 years in prison.

Former U.S. Army Sergeant Sentenced over 15 Years for Transporting Child Pornography, Wire Update.com, July 29, 2010.

August 5, 2010

Homestead Man Held Without Bond on Child Abuse Case

In the majority of murder cases, bond hearing judges will normally hold defendants charged with this crime without bail. However, one of the elements the prosecution has to prove is that the victim is dead. The recent case involving a Homestead man that beat his two year-old son within an inch of his life is a bit strange. Lee De Jesus is accused of punching a little boy 15 times in the face, head and torso during a fifteen minute time span. The young victim was airlifted to Jackson Memorial Hospital where he was examined by neurosurgeon. The neurosurgeon declared the child/victim brain dead. The interesting part of the story is that the defendant was initially arrested on charges of aggravated child abuse and child neglect. Child abuse and child neglect are both bondable offenses. Once the Miami-Dade County State Attorneys Office was apprized of the victim's status, they placed the case on calendar to address the bond status of the defendant.

The prosecution requested that the circuit court judge find probable cause for the offense of 2nd degree murder despite the fact that the child remained on life-support. The Miami criminal defense lawyer from the public defender's office representing the defendant argued that the victim had not yet expired and that his client was entitled to bond. The circuit court judge presiding over the case questioned the lead homicide detective and inquired as to the status of the child. The lead detective informed the judge that a neurosurgeon at Jackson Memorial Hospital has declared the child brain dead. Once the child is taken off life-support he will expire. The judge found probable cause for the charge of second degree murder and held the defendant without bond despite the fact that the child is still alive.

Now that the judge has found probable cause to believe that the defendant committed second degree murder, an offense punishable by life in prison, he is being held without a bond. Other offenses like armed robbery with a firearm, sexual battery on a minor, and armed drug trafficking are also offenses that are punishable up to life in prison. Just because a defendant is being held without a bond for a particular offense, that does not mean that an experienced criminal attorney can't secure a bond for his client. There are two ways to get a bond for a defendant charged with a non-bondable offense. The first way is to convince the prosecutor that their case is weak and that a bond is appropriate based on the facts and evidence supporting the case. The second way to receive a bond is to appear at an Arthur hearing which will be heard by the circuit court judge presiding over the case.

At an Arthur hearing, the prosecution must prove that the crime was committed under the standard of proof evident, presumption great. The standard is higher than beyond a reasonable doubt. If the prosecutor can meet this burden, they must also convince the judge that the defendant is flight risk or a danger to the community. The court will also consider the past criminal record of the defendant in determining whether or not to issue a bond. Due to the fact that De Jesus confessed striking the victim 15 times in the face and body with boxing gloves and the heinous nature of the crimes, any defense counsel will have an uphill battle securing bail at bond hearing for this particular defendant.

Sister Criticizes Boxing Father's Temper, NBC Miami.com, August 5, 2010.

August 4, 2010

Local Resident Arrested on Drug Trafficking Charges

A South Florida man was arrested in Georgia on drug trafficking charges. More specifically, the defendant was charged with trafficking in ecstasy pills. Georgia law enforcement pulled over Wayne Hill, a Miami-Dade County resident, on I-75 as part of a routine traffic stop. The police discovered 40,000 ecstasy pills with a street value of approximately $800,000. They believe Hill is part of a drug trafficking organization that moves ecstacy from Canada to Miami and exchanges the drug for cocaine which is in turn trafficked to Canada. Miami criminal lawyers have seen increases in drug trafficking cases as the economy has been slow to recover. Ecstasy possession and trafficking have become more common with the increase in the drugs popularity.

Miami has become a large importer of ecstacy as it has become a popular club drug. Ecstacy is actually manufactured in Holland and is imported to Canada and delivered throughout the United States. Ecstacy also known as MDMA falls into the category of drugs called Phenethylamines. The particular isomer of MDMA is formally called methylenedioxymethamphetamine. Due to the increase in popularity of ecstacy, the Florida statutes have set out minimum/mandatory prison sentences that apply to individuals charged and convicted of trafficking in MDMA.

If a person is charged with trafficking in MDMA, more than 10 grams, but less than 200 grams, a 3 year minimum/mandatory sentence will attach. If the trafficking charge involves more than 200 grams, but less than 400 grams, a 7 year minimum mandatory sentence will attach. If the MDMA trafficking charge involves more than 400 grams of ecstacy, a 15 year minimum/mandatory sentence will apply. In most cases, persons charged with possession of ecstacy will be offered a credit time served plea or drug court. Prior to entering a plea or going into the drug court program, a person should consult with a Miami criminal defense lawyer experienced in defending drug cases. In many drug trafficking and drug possession cases, the police violate an individuals 4th Amendment rights against illegal searches and seizures and the case will be dismissed by the prosecutor.

A general rule to follow is to never give consent to search your vehicle or your home. Police officers and narcotics detectives will be forced to get a warrant to search any place where a person has a reasonable expectation of privacy. In many instances, law enforcement do not have the requisite probable cause to get a warrant. Never give a statement to the police. When drugs are found in an automobile, the police and the prosecutor will not be able to prove that a person actually or constructively possessed the illegal substance. Admitting that the drugs are yours will only result in a criminal conviction. No one ever helped their case by cooperating with the police. The police may promise to let you go if you admit the drugs are yours, but 99 times out of 100 a person will end up in the Dade-County Jail.

40,000 Ecstacy Pills Found During Traffic Stop, WSBTV.com, August 3, 2010.

August 2, 2010

Broward Law Enforcement Hiring Private Labs to Test DNA

With the rise in the number of burglary cases in Broward County, The Ft. Lauderdale police have turned to private crime labs to help solve some of the cases. The leaders in the police department claim that they could make a dent in solving numerous house and auto burglaries if they had the ability to collect and timely analyze DNA evidence. The same officials claim that the Broward County crime lab takes too long to analyze the samples and wish to speed up the process by hiring private crime labs. DNA testing of samples relating to non-violent crimes are taking at least nine months to complete. The police chief specifically said that the lab does a great job, but it is not big enough to handle the demand from all of the Broward County police departments. The lack of evidence being secured in non-violent cases provide a lot of good cross examination questions that criminal defense lawyers can use in trial.

The BSO crime lab retorted that it handles about 700 cases a year and priority is given to murders and sexual battery cases. The lab also stated that it handles more than DNA cases, but also firearm, drug and fingerprint analysis. The Fort Lauderdale Police Department is looking for a private company to handle about 1,000 cases a year. They intend to use the private lab for non-violent crimes such as burglary and theft cases, while continuing to use the BSO lab for major violent crimes. Where the Fort Lauderdale Police Department obtains the additional funding for such a program remains to be seen. The department is also training officers in crime scene collection in non-violent crimes as the BSO crime lab does not have the personnel to visit every crime scene.

The Fort Lauderdale Police Department is seeking federal grants to subsidize the hiring of private labs to conduct DNA analysis. The cost of analyzing one DNA samples costs bout $2,000, but the cost can be reduced if numerous cases are sent to the same lab. DNA swabs are taken of all defendants who enter pleas or are found guilty by a jury. The intent of relatively new legislation that requires taking DNA swabs of all defendants who enter pleas or who are found guilty is to solve crimes committed by repeat offenders. Reports indicate that non-violent crimes such as burglaries and auto thefts are committed by repeat offenders and that the thorough crime scene analysis and timely lab testing will go along way to solving these types of crimes.

The number of unsolved burglary cases in the United States is at a highly unacceptable number and science can be used to bring offenders to justice. The Broward County State Attorney responded by saying that DNA is a valuable crime fighting tool and should be used to solve crimes against property, as well as, violent crimes. Miami-Dade County law enforcement agencies have not attempted to hire private labs, but if Ft. Lauderdale is successful, Miami is sure to follow suit. Until that time, state prosecutor's will have to rely on eyewitnesses and statements provided by defendants to try to prove their cases. That is a good thing for defendants because identifications and confessions can be subjected to scrutiny in front of a jury.

Lauderdale Police Consider Using Private Labs to Test DNA Evidence, The Sun Sentinal.com, July 31, 2010.

July 29, 2010

Head FBI Agent Testifies Before Congress

Robert S., Mueller testified before Congress and indicated which crimes are now the focus of the FBI. Various internet crimes have become a concern. Cyber attacks from terrorists, according to the director, could have the same impact as more typical type of terrorist attack. Apparently al Qaeda and other terrorist organizations have been able to gather the technology to maintain an online presence. Internet fraud and identity theft have been escalating as reported by the Internet Crime Complaint Center. The Center saw a 22% increase in offenses that were reported, actually rising to 330,000 complaints with estimated losses in excess of $550 million. The FBI has responded by manning 56 field offices with more than 1,000 trained agents, forensic examiners, and analysts. Also on the FBI's radar, are individuals involved internet sex crimes involving children from child pornography to child exploitation.

Every Miami criminal lawyer that practices in federal court will tell you that the most prolific fraud crimes being charged in the Southern District of Florida is mortgage fraud. The director specifically addressed the FBI's response to mortgage fraud. As posted in previous blogs, the federal government has thrown massive amounts of money and man hours to investigate both offenses. The FBI is currently using 23 mortgage fraud task forces and 67 mortgage fraud working groups to combat the crime. The task forces are manned by local, state and federal law enforcement offices and are stationed in areas delineated as high-threat mortgage fraud areas. The FBI has also created the National Mortgage Fraud Team (NMFT) which is located in Washington, D.C. to over see all the task forces and to ensure information sharing between task forces and agencies to catch the most egregious perpetrators.

The next most common federal offense being charged in Miami is healthcare fraud. The director confirmed the creation of Health Care Fraud Prevention and Enforcement Action Team (HEAT). Mueller remarked about the 94 person Medicare fraud bust that occurred earlier in the month and that FBI is targeting individuals involved billing the federal healthcare system for physical therapy, home health care, medical equipment and HIV infusion treatments that were not necessary or were never provided to patients. Like the mortgage fraud task forces, the FBI has created Medicare fraud task forces using federal, local and state law enforcement agencies to investigate possible offenses and make arrests.

The FBI is also targeting gang activity and violent crimes that are being committed across the United States. The FBI created the Safe Streets Violent Crimes Initiatives that focuses on taking down gangs involved in violent crimes. The FBI targets the most sophisticated and violent gangs that are involved in such criminal enterprises such as drug trafficking and racketeering. The FBI has also been concentrating efforts on prison gangs and gangs that operate overseas. The FBI also discussed efforts in combating public corruption and terrorism. Based on the report, it is apparent that the FBI is attacking all different levels of crimes, not only in Miami but across the entire county.

Statement Before the Senate Judiciary Committee, Federal Bureau of Investigation.com

July 27, 2010

South Florida Lawyer Sentenced in Federal Court

A well-known lawyer and forensic accountant was sentenced to 8 ½ years in federal court on theft related charges. Lew Freeman, a former lawyer and accountant was accused of stealing millions of dollars from his clients. The Miami criminal defense lawyers representing Freeman portrayed their client as a Dr. Jekyll and Mr. Hyde. They argued that the person who stole approximately $2.6 million from clients also was a philanthropist that gave to and supported many charities. The United States District Judge agreed with the Freeman's counsel that his crimes allowed him to live an upscale lifestyle, but also used the money to help people.

The pre-sentence investigation (PSI) report drafted by a federal probation officer initially calculated Freeman's sentence at between 12 and 15 years. Government prosecutors argued for a sentence within that range, but the judge recalculated the guidelines when the government could not prove the number of victims of fraud set out in the PSI. In addition to the 8 ½ years, the judge order the defendant to complete 21 months of house arrest with the condition that he perform 1,700 hours of community service during that time.

The judge immediately ordered Freeman into custody to serve his sentence. On some occasions, judges permit defendants to receive their sentence and surrender at a later date to begin their sentence. This was not the case, either by the choice of the judge or the defendant. Freeman apologized to his family, the court and his victims. The facts of the case were stunning in that the defendant, trusted by South Florida courts over 30 years to act as a receiver in many high stakes bankruptcy and fraud cases, became involved in fraud himself. The judge presiding over the sentencing hearing was moved by defense counsel's arguments, but also found that Freeman had violated the trust of many and dealt a blow to the entire system.

Freeman garnered a lot of support from friends, family and other members of the community. Prior to the sentencing hearing, the judge received 277 letters from supporters. The majority of the letters condemned his actions, but all applauded him for his charitable efforts on behalf of the University of Miami, Miami Children's Hospital and Miami Children's Museum, among others. While the letters, support and charitable efforts were well-represented to the judge, the court had to contend with the breach of trust and the numerous victims that lost money. The court also made a point that the defendant spent hundreds of thousands of dollars on clothing, vacation, home renovations, and restaurants. The defense attorney's representing Freeman put together an outstanding presentation, but the number of victims and the underlying offense were to much to overcome a significant prison term.

Miami Accountant Lewis Freeman Gets 8 ½ Years in Prison for Fraud, The Miami Herald, July 24, 2010.