Recently in Appeals Category

December 20, 2010

Supreme Court Overturns Murder Conviction

The Florida Supreme Court reviewed and overturned a first degree murder case based on an underlying cocaine trafficking charge. A jury convicted the defendant, Santo Hernandez, of first degree felony murder. The state alleged that the defendant was responsible for the shooting death of two individuals also involved with cocaine trafficking. Miami criminal lawyers argued on behalf of the state and on behalf of the defendant to the Supreme Court which ruled that the prosecution failed to prove that the defendant was guilty of cocaine trafficking, but was rather only guilty of cocaine possession with intent to sell. The ruling of the high court mandated that the lower tribunal could only sentence the defendant to 3rd degree felony murder as apposed to first degree felony murder. First degree felony murder is punishable by death or a life sentence while the maximum a defendant can be sentenced for third degree murder is 15 years.

To find someone guilty of first degree felony murder, the state must prove beyond a reasonable doubt that a person died as a consequence of and while the defendant was engaged in the commission of or attempting to commit an enumerated offense, or escaping from the scene where the offense was committed. The victim must have been an innocent bystander at the time of his or her death. If one of the co-defendants was killed during the commission of the enumerated offense, then the state will have to proceed on second degree felony murder charges. The enumerated offenses listed under the Florida Statutes include some of the following: drug trafficking, arson, sexual battery, robbery, kidnapping, escape, aggravated child abuse, carjacking, home invasion robbery, aggravated stalking and resisting an officer with violence.

When the Supreme Court held that the defendant was not properly convicted of drug trafficking, the first degree felony murder conviction was not legal and therefore the conviction was overturned. Cocaine trafficking requires the state to prove that a defendant knowingly sold, purchased, manufactured, delivered or possessed in excess of 28 grams of cocaine. The potential sentences for all drug trafficking cases increase the larger the amount of drugs seized by law enforcement authorities. A defendant convicted of possession of less than 28 grams of cocaine can only be charged with possession or possession with intent to sell the illegal substance. The charge will depend how the drug was packaged.

Because the Supreme Court held that the jury could not have properly convicted the defendant of drug trafficking, the state lost the enumerated underlying offense. Based on their finding that the state failed to adequately prove that the defendant was in possession of more than 28 grams of cocaine, the trafficking conviction was improper and ruled that the only correct verdict could have been on the charge of third degree murder. While appeals are not often granted, this appeal allowed for the defendant to someday leave prison. In the State of Florida, a person convicted of a life sentence will spend the rest of his or life in prison as parole no longer exists in this state.

Florida Supreme Court Reduces Conviction in Hialeah Double Murder, Miami, December 10, 2010.

October 27, 2009

Federal Court of Appeals Rules in Favor of Miami Criminal Lawyer

On Monday, October 26, 2009, a Miami criminal lawyer had a ruling upheld in the 11th U.S. Circuit Court of Appeals which could eventually keep him out of prison. The federal appellate court ruled that Ben Kuehne cannot be legally charged for receiving legal fees from money that was illegally obtained. The ruling should put all Miami criminal defense lawyers at ease. With the large volume of drug trafficking, mortgage fraud and Medicare fraud cases in the Miami and South Florida area, many of the fees received in these cases by criminal attorneys come from proceeds obtained through the operation of a criminal enterprise.

The federal appellate court upheld the ruling handed down by U.S. District Judge Marcia Cooke. Cooke granted Kuehne's defense lawyer's motion to dismiss the count of money laundering. Cooke granted the dismissal based on a Congressional exemption which precludes defense lawyers from being prosecuted under the federal money-laundering statute. The exemption was mandated by Congress who sought to protect a defendant's Sixth Amendment privilege to hire counsel of their choice.

Circuit Court of Appeal Judge Rosemary Barkett disagreed with the Department of Justice's argument that a Supreme Court Decision negated the Congressionally mandated exemption. Judge Barkett issued a nine page opinion which disagreed with government's argument that illegally tainted money does not fall within the exemption. Barkett wrote, "We do not believe Congress intended such an absurd result, which nullifies the provision and divorces it from its statutory content, thereby violating basic canons of statutory construction."

Kuehne's attorney was gratified by the decision rendered by the appellate court. A Miami criminal defense attorney who assisted in writing the appellate brief was also satisfied with result which limits the federal government from impeding on an individual's Sixth Amendment rights. Also indicted in the case are Kuehne's Columbian accountant and a Columbian attorney, Oscar Saldarriaga.

Kuehne is a well-known Miami criminal defense attorney who has appeared in many high-profile cases. Attorneys throughout Miami and South Florida have backed Kuehne since he was indicted by the federal government. The dismissal of the money laundering charge removed the most serious charge from the indictment.

11th Circuit Sides with Defense Attorney Over Legal Fees,, October 27, 2009.

October 15, 2009

Miami Federal Judge Reduces Sentence in Cuban Spy Case

In a sentencing re-hearing in Miami federal court, United States District Judge Joan Lenard re-sentenced one of the five men convicted in what has become known as the "Cuban Five" case. A federal appellate court issued an opinion declaring the sentence illegal and the remanded the case back to the U.S. district court for sentencing. The appellate court ruled that the government failed to prove that Antonio Guerrero actually traded in "top secret" intelligence. A well-known Miami criminal lawyer represented Guerrero at the sentencing hearing.

Guerrero was convicted in 2001, along with four other defendants in federal court for spying on anti-Castro Cuban exiles. At trial, the government proved that the five defendants infiltrated numerous anti-Cuban political organizations such as Brothers to the Rescue. Brothers to the Rescue is an anti-Castro group that made regular flights over Cuba to drop leaflets. The Cuban government has routinely said that the five men were in the United States to protect Castro and the Cuban government from individuals seeking to topple the Cuban government. Guerrero is a United States citizen and was working at the Key West Naval Air Station at the time of the alleged offenses.

After a lengthy federal court trial in 2001, Guerrero was found guilty by a jury and sentenced to life in prison. Judge Lenard re-sentenced Guerrero to 262 months in federal prison in accordance with the court of appeals ruling. With the sentence reduction, he will be eligible to leave prison in approximately seven years. The Miami criminal attorney representing Guerrero was quoted as saying, "It was odd, you have a man who was on a military base but who didn't take a single classified document and noone testified that he injured U.S. national security, but the judge still rejected the prosecutors' request to lighten the sentence." Two of the other defendants are scheduled to be re-sentenced later this year or early next year.

Judge Reduces Sentence for One of Cuban Five, The New York Times, October 13, 2009.

October 9, 2009

Florida Supreme Renders Opinion on Miami Marijuana Possession Case

The Florida Supreme court reviewed a Miami marijuana possession case to settle a dispute regarding conflicting opinions from different Florida appellate courts. A juvenile defendant was arrested by the Miami-Dade Police Department for possession of marijuana. The Miami criminal attorney representing the juvenile filed a motion to suppress which was denied by the trial court. The 3rd District of Appeals reviewed the appeal and affirmed the trial court's decision. A Miami appellate lawyer filed and argued the appeal before the Florida Supreme Court.

The court record and police reports indicate that the youth was sitting in his car rolling a marijuana cigarette when he was approached by armed police officers in marked unit with flashing lights. The Florida Supreme Court did not reverse the finding of the circuit court or appellate court, but provided some ammunition that will assist Miami criminal lawyers when they file motions to suppress based on illegal stops. According to the opinion rendered by the Florida Supreme Court, a person has been stopped or "seized" when a person is confronted by armed police officers with flashing lights. When a person is confronted in this situation, a reasonable person would not be free to leave.

Motions to suppress are the best tool that a Miami criminal defense lawyer can use to defend narcotics cases from cocaine trafficking to simple marijuana possession cases. Many Miami narcotics cases can be successfully defended by showing the police authorities did not have a reasonable to suspicion to stop an individual involved in illegal narcotics activities. If a trial judge can be persuaded that law enforcement officers can not establish that they had sufficient facts to warrant the stop, the judge can exclude the evidence. Once the evidence is excluded after successfully arguing a motion to suppress, the prosecution can not proceed with case and will dismiss the charges.

A successful motion to suppress is a sure fire way to beat Miami drug cases. It prevents an individual from going to trial before a jury where success can never be guaranteed. Depending on the charge, defendants can be facing significant prison terms if they are convicted at trial. Even if a motion to suppress is not factually strong, it generally gives Miami prosecutors and reason to work out a case to probation, therefore avoiding the risks at trial. It is imperative that anyone facing serious narcotics charges hire an experienced Miami criminal attorney defending Miami drug charges to defend their case.

Court Clarifies When Someone is in Police Custody, The Miami Herald, October 9, 2009.

September 23, 2009

Miami Criminal Lawyer Facing Appellate Court Decision

Oral arguments were heard in Miami, on Wednesday, September 23, 2009, before the 11th Circuit Court of Appeal. Federal prosecutors argued that a money laundering conspiracy count charged by the prosecution be reinstated against Miami criminal attorney, Ben Kuehne. The federal court case involves Kuehne's acceptance of more than $5 million in legal fees from a Columbian man convicted of cocaine trafficking. Although Kuehne did not represent Fabio Ochoa in his cocaine trafficking case, he was hired to determine whether or not the fees that Ocho paid his Miami criminal defense lawyer were proceeds of the cocaine trade.

Ocho was once the famed ring leader of the Medellin cocaine trafficking cartel. The United States extradited Ochoa from Columbia in 2001 pursuant to the federal joint extradition agreement. Ochoa, convicted in federal court, is now serving a 30 year prison sentence.

An appellate lawyer from the Justice Department argued that United States District Judge erred by dismissing the money laundering and conspiracy count against Kuehne. United States District Judge Marcia Cooke dismissed the count based on a congressional mandate that prohibited criminal lawyers from accepting fees from illegally obtained money. According to Cooke, prohibiting lawyers from accepting fees is in direct contravention of the 6th Amendment to the Untied States Constitution which entitles every defendant the right to be represented by counsel.

Based on the oral arguments, it is highly unlikely that the 11 Circuit Court of Appeals is going to mandate that the money laundering and conspiracy charge be reinstated against Kuehne. Kuehne's federal court case has been placed on hold until the appellate court hands down a ruling. Kuehne faces up to 50 years in federal prison if he is convicted of the money laundering charges and obstruction of justice.

The Miami lawyer representing Kuehne argued to the appellate court, that federal law prohibits lawyers from being prosecuted for receiving tainted fees, however, tainted fees are subject to forfeiture. The current litigation certainly concerns many criminal lawyers who accept fees from clients who are charged with drug related offenses. Kuehne's attorney stated, "It's one thing to find a lawyer willing to risk his fee. It's another thing to find a lawyer willing to risk his liberty."

Fla. Court Hears Alleged Tainted Legal Fees Case, Associated Press, September 23, 2009.