A disbarred Florida lawyer had a busy day in court on Monday. Read more..
Disbarred Florida lawyer gets 30 years in attempted prosecutor hit, plus 8 in racketeering case plea
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Judge Blocks Order Demanding Suspect Decrypt Computer Drives or Face Jail
A federal judge today halted an order that a Wisconsin man decrypt 16 computer drives the authorities suspect contain child pornography downloaded from the peer-to-peer file-sharing site e-Donkey. Read more..
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Utah Gun Lobbyist Loses Guns Following Arrest
Clark Aposhian, a well-known Utah gun lobbyist, was ordered to—at least temporarily—give his guns to someone else in the wake of his arrest on numerous misdemeanor charges. What Happened? The story began when Aposhian’s ex-wife called police and reported that the gun lobbyist was threatening and harassing her and her husband. Aposhian’s version of the [...]
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Lawyer Suspended for Lying to Halt Foreclosure Sale
Kasra Seyed Torabi, 35, Encino, California, was suspended for one year, stayed, placed on one year of probation with an actual 60-day suspension. Torabi was ordered to take the Multistate Professional Responsibilities Exam. The order took effect April 6, 2013. Torabi stipulated to making false statements in a letter to halt the foreclosure sale of [...]
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Eighth Circuit Rejects Appeal Challenging Interstate Commerce Aspect of CP Conviction – U.S. v. Johnson
Federal child pornography penalties are generally considered more severe than those of the states. Unfortunately for defendants, nearly every child pornography crime is a federal case because the vast majority of child pornography crimes involve the Internet, which puts them into interstate commerce. (This is also why the U.S. Sentencing Commission has recommended striking the sentence enhancement for using a computer to commit a child pornography crime.) And even when the Internet is not involved, using computer equipment can still bring the case into interstate commerce, because the vast majority of it is manufactured overseas. That fact was fatal to the appellant’s case in United States v. Johnson, a decision from the Eighth U.S. Circuit Court of Appeals.
Delmarcus Johnson had consensual sex with his 17-year-old girlfriend at a motel in Minneapolis. The girlfriend was above the age of consent in Minnesota, so the sex was legal. But because Johnson also videotaped the sex, he was indicted for possession of child pornography. Representing himself but with standby counsel, he initially pleaded guilty to the one count. In his plea agreement, he agreed that the image was stored on materials shipped in interstate commerce. At the ensuing hearing, Johnson agreed with the prosecutor that the camera was produced outside Minnesota. He later moved to withdraw his plea, arguing, among other things, that there was nothing in the record showing that the video was produced using materials that moved in interstate commerce. This motion was denied and he was sentenced to three years in prison.
On appeal, Johnson renewed his argument that the record didn’t show production using materials that had moved in interstate commerce, meaning that the district court violated the Federal Rules of Criminal Procedure and abused its discretion by denying his motion to withdraw. He noted that he had agreed only that the video was “stored” in interstate commerce, not “produced,” as the statute required. But the Eighth Circuit disagreed, finding that Johnson’s statements at the plea hearing support a finding that he produced the video on the camera. For example, Johnson agreed that he had videotaped the sex, and that the camera he used to do it had been manufactured outside Minnesota. For this reason, the appeals court concluded that no FRCP error occurred, and that there was no abuse of discretion in the district court’s refusal to let him withdraw his plea.
Though the Eighth may be right that there was no reason to let Johnson withdraw his guilty plea, the fact that this case was prosecuted in the first place disappoints me as a cyber crime defense attorney. The federal child pornography possession statute was written to protect children and younger teens from predators. This was not the situation described by the court’s opinion; the sexual encounter was consensual and even lawful. It’s only because he took a video that Johnson is currently in prison. To make matters worse, Johnson will be a convicted felon after his release from prison and probably required to register as a sex offender under SORNA, which will substantially limit his future opportunities. With the stakes so very high, I strongly recommend that people in his position hire an experienced attorney.
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Developer Admits Role in Illegal Flipping Scheme
Joseph Daniele, 42, Tampa, Florida, pleaded guilty to conspiracy to commit wire fraud affecting a financial institution. Daniele faces a maximum penalty of thirty years in federal prison. Daniele’s three co-conspirators, also real estate professionals, previously pleaded guilty for their roles in the conspiracy. Misty Rudd, a real estate agent, Michael Jordan, a mortgage broker, [...]
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Changing the Color of Your Car Can Cause Trouble with the Law
Don't we have enough laws already? Aren't there, already, enough reasons to stop a citizen legally driving down the road, minding their own business? Apparently not.
You've probably heard all the crime rate statistics, so you know that Florida is a hot bed for traffic stops, and drug charges--the two go hand in hand. Basically, people keep drugs in their cars. They then get pulled over with these drugs in the car. It's just that simple. Its safe to say that the vast majority of all drug possession charges come from a search of someone's vehicle after a traffic stop.
So if traffic stops lead to vehicle searches, and these searches lead to drug arrests, let's review some common traffic stop scenarios. The most common (bogus) reason for a traffic stop is failing to stop at a stop sign. Yep. Rolling thru a stop sign is a favorite of drug enforcement units who have no desire to enforce traffic laws, but merely have a quota of drug arrests to meet in order to justify their employment. And, another favorite reason for a stop is illegal window tint. Of course, we criminal defense attorneys have our ways of demonstrating to judges the fabricated nature of such stops, but that's a discussion for another day. Today, let's talk about those instances in which the police are mistaken as to the traffic laws.
There's a long list of drug possession convictions which have been overturned due to illegal traffic stops. The illegality of a traffic stop comes in many forms, and sometimes its simply due to an officer's mistaken ideas of law. For example, one driver was pulled over for not having a center rearview mirror in his car. News Flash: the absence of a center review mirror does not constitute a reason to stop a vehicle. Why, you ask? Because center rearview mirrors are not required under Florida law. In such stops, all drugs found after the stop will be suppressed. See Leslie v. State, 108 So.3d 722 (Fla. 5th DCA 2013). By the way, one rearview mirror is required, but it may be located on either side of the vehicle, so long as it permits the driver to see 200 feet behind the car (don't need two mirrors, just one). The stop in the Leslie case is what is commonly referred to as a "mistake of law". And, under no circumstances can an officer's mistake of law justify a traffic stop.
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Attorney Stipulates to 15 Counts of Loan Modification Misconduct
Nicole Rosie Gallegos, 36, Irvine, California, was suspended from the practice of law for two years, stayed, and placed on two years of probation with an actual nine-month suspension that will continue until she pays restitution. Gallegos was also ordered to take the Multistate Professional Responsibilities Exam and comply with rule 9.20 of the California [...]
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FL - Sexual Predator Signs - Florida sheriff going beyond the law?
Click the image to read more
Video Description:
A sheriff in Bradford County, FL (Facebook, Photos, Photos), is installing bright red signs in front of the homes of sexual predators. Will the...
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CA - Ex-Maywood policeman (Ryan Allen West) gets 19 years in prison for sex attacks
Original Article
06/04/2013
By Andrew Blankstein
A former Maywood police K-9 officer was sentenced Tuesday to 19 years in state prison after pleading no contest to sexually assaulting five...
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NJ - Sheriff's Officer (Thomas Ingham) Indicted on Sexual Assault Charges
Thomas Ingham
Original Article
06/03/2013
By Daniel Hubbard
An Essex County Sheriff's officer has been indicted on sexual assault charges, Passaic County Prosecutor Camelia Valdes announced...
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Heroin is dangerous to user's life
The defendant, is twenty-two years of age, an admitted heroin user and, in all probability, an addict. At the time of this occurrence, he was living in an apartment over a bar located on Jericho Turnpike, Smithtown, New York. On...
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Yahoo! News: A damning dissent: Scalia’s dissent for the ages in the DNA case
Yahoo! News: A damning dissent: Scalia’s dissent for the ages in the DNA case by Jeffrey Rosen, National Constitution Center:
[...] Read more!
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N.D.W.Va.: Odor of meth cook and hiding or destroying materials and covered wiindows was PC
“[T]he detection of the odor of a methamphetamine cook by officers trained or experienced with the odor, coupled with the activity of the occupant in actively hiding or destroying materials and the fact that most of the windows of the trailer were covered, all of which was observed before the entry, would provide sufficient probable cause for the search warrant. See United States v. Shuck, 713 F.3d 563 (10th Cir. 2013), a case with remarkably similar facts.” United States v. Richardson, 2013 U.S. Dist. LEXIS 75946 (N.D. W.Va. May 30, 2013).*
Defendant’s IAC claim on failure to object to a probation search of his car failed because the “record also suggests the search was premised upon Strother's consent.” State v. Strother, 2013 Iowa App. LEXIS 561 (May 30, 2013).*
Defendant’s Franks challenge to the officer’s claim in the search warrant about the agent using his cell phone during the surveillance. The evidence at the hearing shows that defendant failed in his burden of proof. Even if he used the cell phone during surveillance, so what? The same is the outcome of the other objections: Even if the defendant’s allegations could be proved, they aren’t material to the outcome. United States v. Morales-Castro, 2013 U.S. Dist. LEXIS 76940 (D. P.R. May 30, 2013).*
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Old News: Hitler's Soldiers Given Meth
So many news organizations today are writing about Hitler's soldiers being given meth-like pills. The articles seem to emanate from a Der Spiegel article this Sunday.
But this isn't news. Even Der Speigel wrote about it in 2005 --...
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Pretrial DNA Collection from Defendants in Georgia
View More Criminal Defense Articles Maryland v. King In the case of Maryland v. King, King was arrested in 2009 [...]
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Two Vehicle Injury Crash near Travelers Oasis.
IDAHO STATE POLICE NEWS RELEASE - generated by our News Release ListServer
DO NOT REPLY
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IDAHO STATE POLICE NEWS RELEASE
District 4 Patrol 218 West Yakima, Jerome, ID 83338-5904 (208) 324-6000
Fax (208) 324-7897
For Immediate Release: 06/05/2013 3:55 pm
Please direct questions to the District Office
On Wednesday, June 5, 2013, at approximately 11:30 am, Idaho State Police investigated a two-vehicle injury crash on State Highway 50 at milepost 4.5, near the Travelers Oasis Truck Plaza, near Eden, ID.
Raymond Broom, 46, of Columbia, MS, was driving a 2012 Western Star semi truck and turned left from the Travelers Oasis gas station on to northbound State Highway 50. Mary Erickson, 32, of Almo, ID, was driving south on State Highway 50 in a 2007 Dodge Ram 2500 pickup. Broom failed to yield to oncoming traffic when making the left hand turn. Erickson collided with the driver's side of Broom's trailer.
Erickson was transported by ground ambulance to St Luke's Magic Valley Regional Medical Center in Twin Falls. All parties were wearing seatbelts.
State Highway 50 was blocked for approximately 2.5 hours.
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Gallant on Extraterritorial Application of a Statute
Kenneth S. Gallant (University of Arkansas at Little Rock - William H. Bowen School of Law) has posted What Exactly is 'Extraterritorial Application' of a Statute? (Jurist Forum, May 2013) on SSRN. Here is the abstract: Much comment has been...
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Dole test is used often in drug cases
A New York Drug Lawyer said that, respondents appeal from an order of the Supreme Court, entered on July 7, 1986, which enjoined them from implementing New York City Police Department Interim Order No. 36 which was issued on or about June 2, 1986. Said Order No. 36 would require current and future members of the Organized Crime Control Bureau (OCCB) to submit to random drug testing without reasonable suspicion.
A New York Criminal Lawyer said that, Interim Order No. 36 would require any police officer assigned to the OCCB to submit to drug testing at any time and without the normal requirement of a showing of reasonable suspicion of drug use. Specifically, Interim Order No. 36 requires the following: (1) All applicants for assignment to the OCCB would be required to submit to drug testing as a condition of such assignment. (2) Members submitting applications would be required to sign a form stating that they understand that drug testing is a part of the application process and a condition for continued assignment to the OCCB. Initial screening or testing could occur any time after the assignment and subsequent testing could occur periodically. (3) Members already assigned to the OCCB would be required to sign a form stating that they understand that drug screening is a condition of continued assignment to the OCCB. They would be subject to periodic testing as long as they are assigned to the OCCB. If a current member refused to sign the form, he or she would be immediately transferred from the OCCB. (4) Any applicant or member of the OCCB who, having signed the form, later refused to undergo testing would be suspended and the refusal would be grounds for dismissal from the Police Department.
A Lawyer said that, the petitioners do not object to drug screening in order to be assigned to the OCCB, nor do they object to drug crime testing as a part of an annual physical exam. They claim, however, that to require members of the police department who are assigned to the OCCB to undergo random drug testing without reasonable suspicion is a violation of their rights under the Fourth Amendment to the Constitution of the United States and Article 1, § 12 of the Constitution of the State of New York.
The issue in this case is whether Interim Order No. 36 violative of the Constitution.
the court affirms the grant of the permanent injunction because (1) reasonable suspicion is required before the members of the OCCB can be required to submit to random drug testing, (2) the recent decision in the 1987 case , requires the voiding of Interim Order No. 36 and (3) elementary protections of privacy and individual rights are absent from the order.
A number of cases have held that reasonable suspicion is required before urine testing of members of a police department can be ordered. The Court concludes that it is not constitutionally permissible to do away with a requirement of reasonable suspicion where drug crime testing can be a part of an annual physical examination and drug testing is required prior to entry to the OCCB.
In determining that reasonable suspicion, rather than probable cause, must exist to justify the search, the court reasoned that teachers have a diminished expectation of privacy since the government is entitled to inquire into their physical fitness to perform as teachers. The school district conceded that it did not have reasonable suspicion to believe that all or any of its probationary teachers were drug abusers. It did, however, argue that reasonable suspicion is not required when a public employer decides to test all employees in a particular category for potential drug abuse. It attempted to draw an analogy to random searches at police check points. While acknowledging that the courts have sanctioned certain types of random searches when the privacy interests are minimal, the government's interest is substantial, and safeguards are provided to insure that an individual's reasonable expectation of privacy is not subjected to unregulated discretion, the court noted that the test failed these requirements.
In addition to the absence of reasonable suspicion as a condition for drug testing, there is a third reason why Interim Order No. 36 is invalid. That reason is the total absence of safeguards and protection for privacy in the Order. This becomes clear when Interim Order No. 36 is compared with Interim Order No. 13, promulgated by the New York City Police Department on or about February 19, 1985.
Interim Order No. 13, which was in effect at the time of the promulgation of Interim Order No. 36 and which continues in effect today, mandates drug testing where there is reasonable cause to believe that any police officer is wrongfully using drugs. The Order also contains a number of safeguards to protect the individual affected. Specifically, Interim Order No. 13 states the following: (1) It is a mandate of the police department that its members not engage in illegal drug crime usage. (2) A Dole Test will be utilized by the Police Department "to detect the presence of drugs in the urine of members of the service suspected of illegal drug usage." A Dole Test will be administered "when there is a reasonable basis to believe that an individual member of the service (uniformed or civilian) is wrongfully using drugs." When there is a reasonable basis to suspect drug usage, the member of the Police Department must take a Dole Test as directed. Refusal would result in suspension and subsequent charges.
The safeguards of Interim Order No. 13 for a member of the Department suspected of drug usage are present in every phase of the investigation, to wit: (1) If a member of the service "has reasonable basis" to believe that another member of the service is illegally using drugs, he or she must notify the commanding officer or duty captain, who, in turn, must notify the Internal Affairs Division, Action Desk and comply with any instructions received. Where the observations of a member of the service formed the basis for the belief that another member is using drugs, two supervisors must observe the suspected drug abuser. (2) The supervisory officer assigned to conduct the investigation must prepare a case folder and document all aspects of the investigation. (3) A Dole Test is administered only after the investigating supervisor has conferred with and obtained the approval of an attorney in the Department Advocate's Office. (4) The Dole Test is administered by the Health Services Division and certain information (including the name of the attorney in the Department Advocate's Office, a name of the witness to the test and the results of the test) must be recorded in a Dole Test Log. (5) Where the Dole Test does not indicate the presence of a narcotic substance or marijuana possession, the investigator's case file is sealed. (6) Where the Dole Test is negative, any reference to the Dole Test is expunged from the member's record.
The fact that the safeguards which are so much a part of Interim Order No. 13 are totally absent from Interim Order No. 36 is a further ground for annulling the latter Order. Members of the service who have given no reasonable indication of drug usage are unfairly lumped with those reasonably suspected of drug usage. Moreover, Order No. 36 contains no safeguards whatsoever to insure the integrity of the testing procedures. It is insufficient for the respondents to attempt to persuade the court by means of affidavits that proper procedures will be used when those procedures are not provided for in the order itself. A police officer who has volunteered for and been given one of the most difficult assignments in the Department should not be "rewarded" by diminished constitutional protection.
For the foregoing reasons, the order and judgment of the Supreme Court, New York County, entered July 7, 1986, which granted the petition to the extent of annulling and permanently enjoining respondents from implementing Interim Order No. 36, insofar as it requires present and future members of the Organized Crime Control Bureau to submit to urinalysis testing periodically, on a random basis, is affirmed, without costs and without disbursements.
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DNA Can Be Taken Without Search Warrant from Innocent People and the Wrongfully Accused After Arrest (and Put in Database) Rules U.S. Supreme Court in Maryland v. King: a Dangerous Decision
DNA has a great reputation, especially if no one bothers to research its accuracy. Fighting against DNA evidence just became a lot more work for criminal defense attorneys – and it just became a bigger issue for Texans and US citizens everywhere, now that the United States Supreme Court has issued its opinion in Maryland [...]
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