Constitution - Bill of Rights Category Archives — Page 10 of 12 — White Collar Criminal Defense Lawyer Blog Published by Miami, Florida White Collar Criminal Defense Attorney

Published on: March 18, 2013

No double jeopardy problem with mistrial when the defendant refused to continue trial with less than 12 jurors

In U.S v. Davis the defendant was charged in a 16-count indictment with various offenses arising out seven armed robberies. During the jury selection one of the prospective jurors, a dance instructor, announced she had a problem serving because she was paid by the hour and would not be paid during the trial. Another prospective juror said her English was poor. Both were seated as jurors anyway. The 12 jurors were empaneled, but there were no venire members remaining to select as alternates, and the trial began without alternates. After the trial began, the defendant announced that he was dissatisfied with his court-appointed counsel and insisted on representing himself. The defendant also announced to the court that he wanted to go back to his cell for the remainder of the trial and turned down an offer that would have allowed him to monitor the proceedings from his cell. The trial continued under those conditions, with the defendant representing himself from his cell. When the trial court took an early lunch break to review the issue of the defendant’s absence from the trial, the dance instructor approached the trial judge and persisted about the loss of income she faced and the affect this would have on her finances. The non-English speaker also approached and informed the trial court and informed the court that she did not understand everything. When the defendant was asked if he would agree to go with less than twelve he refused. Because the opening statements had been given, the trial judge decided he could not ask the clerk to send up more prospective jurors. The court found it necessary to dismiss the two jurors. The defendant advised the court that he did not agree to a jury trial of less than twelve jurors. The trial judge decided the only alternative was a mistrial. Defendant’s standby counsel moved for to dismiss under Double Jeopardy because he argued there was no manifest necessity. The district court denied the motion and the defendant took an interlocutory appeal.

The issue in this appeal was whether a retrial was prohibited under the Fifth Amendment of the U.S. constitution. The “Double Jeapardy Clause” states that no person shall be “subject for the same offense to be twice put in jeopardy of life or limb.” Jeopardy attaches when the jury is empaneled and sworn and subject to limited exceptions is entitled to have his case decided by that jury. One of those exceptions applies when the mistrial was caused by “manifest necessity,” which means “the ends of public justice would otherwise have been defeated by continuing the trial.”

The 11th Circuit found no Double Jeopardy violation caused by the trial court declaring a mistrial. Rule 23(b) required a jury be composed of 12 persons and proceeding with less than 12 requires stipulation by the parties. The defendant objected to proceeding with a jury of less than 12. The court found that dismissal of the juror with poor understanding of English was manifest necessity. While she showed sufficient language proficiency during voir dire, she brought her language difficulty to the trial court’s attention after the trial started. Under those circumstances dismissing her as a juror became a matter of manifest necessity. Davis’s position was against a jury of less than 12 and his position was for a trial with the original 12. Because that was impossible due to the language difficulty of the juror, the mistrial was the only alternative.

Published on: March 17, 2013

Conceding one charged robbery at trial while disputing the second was not ineffective assistance of counsel

by The Swartz Law Firm

The defendant in U.S. v. Darden was charged with obstructing commerce by robbery and brandishing a firearm in connection with two robberies. In the first underlying incident, an armed robbery of a Tampa, Florida convenience store, the gunman fled without apprehension. In the second incident Darden was shot by the pursuing store clerk. In the second incident Darden was apprehended and admitted to the robbery. Charged with both robberies, Darden went to trial placing the defense counsel in the position of having to vigorously defend against both robbery charges or concede guilt as the second robbery to save credibility in defending Darden against the first robbery. Apparently without consulting Darden, his counsel chose the latter. At trial, Darden’s attorney conceded the evidence was enough to convict of the second robbery, but not enough for a guilty verdict on the first robbery. The attorney argued that by charging Darden with both robberies, the government was trying to “buy a verdict and get one free.”

After his convictions were affirmed on appeal, Darden brought a 2255 collateral challenge claiming ineffective assistance of counsel arguing that under the Supreme Court’s decision in U.S. v. Cronic, the decision to concede guilt on one of the two charges without consulting his client was presumptively prejudicial. In Cronic the Supreme Court held that if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,” prejudice is presumed, making unnecessary the 2-step analysis in Strickland v. Washington, which requires that the defendant show 1) deficient performance by counsel and 2) the deficiency caused substantial prejudice to the case.

The issue facing the 11th Circuit was to determine whether the defense counsel failed entirely to subject the government’s case to meaningful adversarial testing. In other words, whether to analyze Darden’s ineffective assistance claim under Strickland or under Cronic. The 11th Circuit held that Cronic did not apply and Darden would have to show he suffered substantial prejudice by his counsel’s failure to consult with him about the trial strategy.

Published on: March 15, 2013

No standing for a defendant challenging the warrantless installation of a GPS tracking device

by The Swartz Law Firm

In U.S. v. Gibson, the defendants were convicted of conspiracy to possess with intent to distribute cocaine and cocaine base and with possession with intent to distribute cocaine and cocaine base. Defendant Burton was charged with a the federals crime when cocaine was found in the pickup truck he was driving. Federal Agents suspected that codefendant Gibson, who was a frequent driver of Burton’s truck, had been using it for drug trafficking. The agents saw Gibson driving the truck and saw it parked in front of Gibson’s. Burton was the registered owner, however. While the truck was parked in front of Gibson’s house, the agents installed a tracking device on the undercarriage of the truck without a warrant. They tracked its movement for the next month. At one point, while it was moving between Tallahassee and Ocala, the agents grew suspicious that it was carrying drugs and they had a sheriff deputy make a traffic stop. Burton was driving, and he was arrested when two kilograms of cocaine were found following a consensual search. Burton filed a motion to suppress the evidence based on the warrantless installation of the tracking devise. The federal trial court found no Fourth Amendment violation. Gibson later filed a motion to suppress evidence based on the warrantless installation of the tracking device and a motion for reconsideration. He did not originally file the motion to suppress because he did not then know any facts upon which he would have standing to object to the placement of the tracking device or the stop of the vehicle. He alleged that the agent’s testimony that the truck was in his possession when the tracking device was installed and that Gibson was seen driving the vehicle on several occasions, gave him standing to contest the installation of the device on the truck. The district court ruled Gibson had no standing to contest the installation of the device and that he had no standing to object to the stop.

After the conviction, the U.S. Supreme Court decided U.S. v. Jones in 2012 which held that the installation of a GPS tracking device on a target’s vehicle and its use to monitor the vehicle’s movement constitutes a search. In light of the Jones decision, Gibson argued all evidence obtained from the tracking device on the truck should be suppressed because the installation and use of the device constituted a search without a warrant. He maintained he had standing to challenge the search based on an expectation of privacy in the truck because he had possession and control of the truck when the tracking device was installed. The 11th Circuit found that because Gibson paid the insurance and maintenance and he often used the car with Burton’s consent, he had a legitimate expectation of privacy in the vehicle and standing to challenge the installation of the tracking device while the vehicle was in his possession, but he had no standing to challenge the use of the tracking device to locate the truck when it was moving on public roads and he was neither the driver or the passenger. Because he had no possessory interest when it was stopped, he lacked standing.

No double jeopardy where a prior conspiracy conviction overlaps

Published on: March 13, 2013

Voluntary admissions made following a warrantless entry not subject to exclusion

by The Swartz Law Firm

After a brief hiatus, please find this Miami’s defense attorney’s latest entry, summarizing a recent opinion from the 11th Judicial Circuit. The opinion touches on topics and practice areas relevant to the Swartz Law Firm’s scope of expertise, including sex offenses and internet crimes.

In U.S. v. Slaughter the defendant appealed his conviction for use of the internet to entice a minor to engage in sexual activity (18 U.S.C. §2422(b) and committing a felony involving a minor while being required to register as a sex offender (18 U.S.C. §2260A). Registered as a sex offender, he went on Craig’s list and responded to a post by a 14 year-old girl named Hanna seeking someone to buy alcohol for her and some friends. Hanna turned out to be an FBI agent. After a flurry of emails Slaughter began expressing an interest in a sexual encounter with the two girls and suggested they rent a hotel room. Knowing they were underage, he made plans to meet them at a specific hotel. On the arranged date, agents arrived at the hotel room and without an arrest warrant or a search warrant, they entered his room, tackled him, and told him they intended to search his room and car. Later, he was taken to the county sheriff’s office where he was read his rights pursuant to Miranda. He signed a waiver and admitted to trying to entice the girls to meet him at the hotel room by his emails.

Slaughter moved to suppress post-arrest statements made at the sheriff’s office following the warrantless entry into his hotel room. The 11th Circuit found the statements to be admissible even though the police had previously entered his hotel room illegally and arrested him. Additionally, the 11th Circuit found the facts similar to the Supreme Court decision in U.S. v. Harris where police illegally entered a defendant’s home and arrested him on probable cause he committed a murder and later at the police station he waived Miranda and gave a statement. The Supreme Court found the exclusionary rule does not apply to the statements. Here the police had probable cause to arrest Slaughter, his Miranda rights were read and he voluntarily gave his statement under these circumstances, though the earlier pre-Miranda statement was suppressed the post Miranda statement was not subject to the exclusionary rule.

Published on: December 22, 2012

More than just voting rights must be restored for a person to be eligible to possess a firearm under federal law prohibiting possession by felons

by The Swartz Law Firm

In U.S. v. Thompson the defendant appealed the district court’s denial of his motion to dismiss the federal criminal charge in federal court of possession of a firearm by a convicted felon in violation of 18 U.S.C. §922(g) The defendant in U.S. v Thompson became a convicted felon following his conviction for first degree assault in an Alabama state court in 1994. As a convicted felon he lost the right to possess a firearm under federal law. He also lost the right to vote, the right to hold public office and the right to serve on a jury under Alabama laws. In 2005 he applied to the State of Alabama for restoration of his civil rights and received from the State of Alabama Board of Pardons and Paroles a Certificate of Restoration of Voter Registration Rights. It advised him that his right to vote had been restored in the State of Alabama. The certificate advised Thompson that the “certificate is not a pardon and does not restore, remove or address any other rights , privileges or requirements.” The State also informed him “this certificate serves only the function of allowing you to vote.”

Thompson challenged his conviction claiming that he should not have been convicted under §922(g)(1) because he argued his civil rights had been restored. Section 921(a)(20) excludes any conviction under this statute if the person has had “civil rights restored.” Because the statute does not clarify which civil rights must be restored, prior Eleventh Circuit cases have interpreted this to mean the civil rights must be “unreservedly” restored to qualify for the exception. The open question that was not yet resolved by the court was whether all civil rights must be restored or merely some of them, and if so, which rights. Here the question was whether the restoration of just voting rights is sufficient restoration of civil rights to qualify for the exception under the statute. The court has in the past ruled that the three key civil rights which must be restored to qualify under the statute are: 1) the right to vote, 2) the right to serve on a jury, and 3) the right to hold public office. The Eleventh Circuit relied on a majority (six) of the other circuits that interpret “civil rights” as plural and require more than of these three key civil rights be restored to satisfy the statutory exception to the prohibition of possession of a firearm by a convicted felon. Though Thompson’s voting rights includes several rights, including the right to vote in federal elections, state elections, and the right to vote in primaries, Thompson only had one of the key civil rights restored. The restoration of only one of these key rights does not satisfy the language of §921(a)(20). The restoration of the right to vote by itself was insufficient to satisfy the exception. This issue will likely be seen in Miami and other areas of Florida where persons often try to restore their civil rights after a felony conviction.

The Eleventh Circuit also resolved a subject matter jurisdiction question. Thompson entered into an unconditional plea and raised the issue after plea and before sentencing. The Eleventh Circuit found it was appropriate to address the matter. Normally a guilty plea acts as a waiver to all non-jurisdictional challenges to a conviction, challenges to subject matter jurisdiction in federal court cannot be waived. Thompson’s argument that the indictment fails to charge an offense that implicates the district court’s jurisdiction was not waived by his unconditional plea.

Published on: December 11, 2012

A twenty-five day delay before an agent submitted a search warrant application to a Magistrate Judge to search a computer was not unreasonable in view of the totality of the circumstances

by The Swartz Law Firm

In U.S. v. Laist, FBI agents traced child pornography images to a computer used by Laist, a University of Georgia student. They paid a visit to the student’s residence to ask him for consent to view his computer. Laist then provided the agents with consent to look at the computer and gave the agent his username and password. The agent concluded that there was child pornography on the computer and asked Laist if he could take it to the FBI office for further analysis. The agent was convinced it contained child pornography. Laist gave consent of the agent to take the computer for further examination but asked for and received permission to copy documents he needed for school. The computer was taken on March 4, 2009, and on March 11, 2009, Laist’s attorney sent a letter revoking his consent. The letter was received on March 12, 2009. Once this notice was received, the FBI agent who seized the computer began the process of drafting a search warrant application by preparing the affidavit. The warrant affidavit and application were completed and submitted to the Magistrate judge on April 7, 2009, but the magistrate judge did not issue a warrant until April 13, 2009. Ultimately the agents found the computer contained child pornography images and Laist was charged in federal court with possession of child pornography.

The issue was whether it was reasonable for the FBI to wait 25 days to prepare the search warrant application while holding Laist’s computer based on probable cause. The 11th Circuit found the 25 day delay was not unreasonable. Laist’s possessory interest in the content of the computer was diminished for several reasons. First, Laist was able to remove whatever files he needed. And he had an opportunity to copy what he needed. Though he revoked consent he did not request additional files. Furthermore he admitted there was child pornography on the computer.

The government still obligated to diligently obtain a search warrant. The 11th circuit upheld the district court’s finding that the agents did act diligently by finding that the agent put the ball in motion the very first day he received notice Laist revoked his consent. The agent began writing the affidavit on the March 10 and submitted his first draft to the US attorney 10 days later. The court noted findings by the district court: that the agent put considerable effort into preparing the affidavit which contained valuable information about how theses crimes are committed such as an explanation of the peer-to-peer file sharing used to distribute the child pornography; that it contained extensive information about the defendant’s conduct including descriptions of how the Innocent Images National Initiative conducted several online undercover sessions; and that the affidavit did not contain a whole lot of boilerplate. In the weeks following the AUSA and the agent exchanged drafts. Furthermore, the investigation took a year and involved numerous agents. The government sufficiently showed diligence. Under the totality of the circumstances the facts show the government’s delay was reasonable.

Published on: October 5, 2012

Questioning the defendant during a Terry stop about a matter unrelated to the Terry stop did not violate the Fourth Amendment

by The Swartz Law Firm

In U.S. v. Griffin, a police officer in Jacksonville, Florida, responded to a call from a store about an attempted theft, he recognized strip mall as a location where there had been several burglaries and drug activity. Upon arriving at the store, the security guard told him that someone tried to steal some clothing and pointed to the direction the suspect went. The officer spotted a group of eight people, but only the defendant Griffin fit the description. He followed the defendant for a short time. When he called for the defendant to stop, the defendant continued to move away in an evasive manner. As the officer approached Griffin he put both hands on Griffin’s wrists and told him he was investigating a theft. Griffin denied stealing anything but the officer frisked him to ensure his safety. In his pocket, he felt what he thought were a couple of C-cell batteries. He did not reach into the pocket but unsure of what it was or why Griffin would be carrying batteries he asked: “Hey what’s in you pocket and why do you have batteries?” The defendant answered that they were shotgun shells and not batteries. The officer then asked if he had ever been to prison, and the Defendant replied yes. Griffin was arrested and charged with being a felon in possession of ammunition.

The district court granted the defendant’s motion to suppress the ammunition and statements because it found that although the initial stop and the ensuing frisk was permissible, the questioning by the officer went beyond the scope necessary to ensure the officer’s safety and became an unreasonable search when the officer continued to probe and investigate about the items he felt in the defendant’s pocket.

The Eleventh Circuit reversed. It found the initial stop and pat down was a permissible stop under the Fourth Amendment. Under these circumstances the officer may conduct a pat down pursuant to Terry v. Ohio, if he reasonably believes his safety and the safety of others is threatened. The officer was alone in a high crime area with six to eight others persons in the vicinity and the defendant had refused to stop when the officer was investigating an alleged theft. All of this justified the initial stop and frisk.

Published on: September 26, 2012

Warrantless search of home for guns upheld after the Defendant arrested outside the house

by The Swartz Law Firm

In U.S. v. Franklin the Eleventh Circuit applied an exception to the Fourth Amendment protection against warrantless searches and seizures of the home. Under the Fourth Amendment, a law enforcement officer must present to an independent magistrate an affidavit showing probable cause exists to support the issuance of a warrant. Courts have carved out exceptions to the warrant requirement and this case presents one of those exceptions. The Eleventh Circuit upheld a warrantless search and seizure of firearms from a house after the Defendant had been taken out of the house and arrested for a probation violation. The defendant had been under the supervision of a state probation officer when he flat out told the P.O. that he was no longer going to comply with his conditions and would not report as required. The probation officer obtained a warrant for his arrest and learned he was staying at his fiance’s home in Ft. Myers, Florida. After arriving at the fiance’s house with other police officers, the probation officer knocked on the door but no one answered. One of the officers went to the back of the house where he observed Franklin through the rear window and saw several firearms in plain view. Franklin was eventually persuaded to come out and surrendered. After Franklin’s arrest, the probation officer entered the house claiming he did it for officer safety since there were other persons who were in the house along with the firearms. Inside he seized five weapons. The defendant was charge with the illegal possession of a firearm. The defendant filed a motion to suppress.

The magistrate judge initially granted the motion because it found the defendant was no longer on conditional release on the day of search so he consent to search was not valid. The magistrate judge also found that good faith did not apply. The district court reversed the magistrate’s ruling and found there was sufficient probable cause and exigent circumstances to justify entry into the house and seizure of the firearms. Viewing the totality of the circumstances, a reasonable officer would believe that evidence might be destroyed or removed before a warrant could be secured.

The Eleventh Circuit agreed with the district court and upheld the search and seizure on the reasons given by the district court. The evidentiary hearing demonstrated that that the probation officer acted reasonably under the circumstances. He reasonably believed the firearms could be removed before a warrant secured. Two cars were in the driveway and at least one person seemed willing to help the defendant avoid arrest by not answering the door. Here the Eleventh Circuit found an analogous case in U.S. v. Rodgers, 924 F.2d 219 (11th Circ 1991) where there were exigent circumstances to enter a residence because another person who knew of the defendant’s arrest was in the residence and the handgun could easily be removed.

Published on: July 26, 2012

Court finds a warrantless entry into the home did not taint the subsequent consent to the search the home and discovery of child pornography on defendant’s computer

by The Swartz Law Firm

In U.S. v. Smith, the 11th Circuit found no Fourth Amendment search and seizure violation. Smith was charged with receiving and distributing child pornography in violation of 18 U.S.C. 2252(a)(2) and (b)(1) following the discovery of child pornography on a computer found in his home. Smith moved to suppress the computer contents from admission at his federal criminal trial. He also moved to suppress statements on the grounds the officers conducted a warrantless and uninvited entry into the house and the evidence should be suppressed as the fruit of poisonous tree. After the motion was denied, Smith entered a conditional guilty plea allowing him to appeal.

Here are relevant facts. ICE officers operating on a tip that Smith has child pornography on his computer went to his duplex apartment to speak with him. No one answered after officers knocked and then pounded on the door.

Through windows the officers saw mound of beer cans and a laptop computer in the living room. They smelled a foul odor from Smith’s apartment, which one detective thought was similar to that of a decomposing body. A neighbor told them he had to be home because she saw him the previous evening and his car was in driveway. The neighbor expressed concern that he was not answering the door and asked the officers to check on him and she told one of the officers that Mr. Smith was feeling some sort of depression and was not acting right. The officers determined they should conduct a “welfare check” and enter the home through an unlocked sliding glass door to ensure Smith’s well-being. As they moved through the house they heard a moaning or groaning sound and found him in his bedroom lying on a mattress. After he told them he was okay they told him they were there to speak with him. Smith said he would talk with them outside. The officers left the apartment and met with Smith outside where they asked him questions about child pornography on his computer. When officers asked him if they could look at his computer, he agreed and let them back in the house. The officers found suspicious files on his computers. After some time, he signed a consent form allowing the agents to search his home. He then consented to the police taking items back to the station to examine. They asked and he agreed to return to the station with them for questioning. At the station he was given Miranda warnings. He then confessed to downloading child pornography and making it available for upload via a peer to peer file sharing program.

Published on: June 22, 2012

Officer’s conviction for federal crime of depriving persons of the right to be free from unreasonable seizure was upheld

by The Swartz Law Firm

In U.S. v. House the defendant was charged with the federal crimes of depriving a person of the constitutional right to be free from unreasonable seizure by a law enforcement officer, in violation of 18 U.S.C. §242, and with making false statements within the a matter within the jurisdiction of the Federal Protective Service, in violation of 18 U.S.C. §1001. House was a law enforcement officer for the Federal Protective Services, a federal law enforcement agency whose jurisdiction is limited to properties owned by the General Services Administration (GSA). He wore a uniform with a badge, and carried a police officer type utility belt with gun, radio, and handcuffs. He drove a vehicle with markings, siren, emergency lights on the roof similar to a police car. He looked like a police officer. House had an ugly habit of stopping motorists who did not violate any traffic laws, but he accused them of driving carelessly or recklessly. Essentially, he was charged with making unlawful traffic stops of about seven different individuals and submitting false information about each of the incidents to his agency. In some cases he would call the local police and give false information about what the driver had done. He gave false information in the reports he was required to give his agency about any incident where he used his emergency lights. The motorists where recounted their feeling of intimidation by his siren and uniform, believing he was a police officer with full authority to stop and detain. In fact, his agency gave him no authority to pull over a driver outside of GSA property. In addition to this charge, he was charged with making false statements to the Federal Protective Service.

Sufficiency of the Evidence.

House argued the evidence was insufficient to establish that he seized motorists. The 11th Circuit recounted the evidence given by various motorists pulled over by House who described how he pulled them over with emergency lights activated and walked up to them wearing what appeared to be a police uniform. The motorists said they pulled over because that is what law abiding citizens must do. They described House’s tone as “scary” and felt intimidated. The jury was entitled to find that House seized the defendant by detaining them or forcing them to stop. The evidence was sufficient to show that the seizures were unreasonable. The jury was also able to find from the testimony that there was no probable cause to seize them because of a lack ofprobable cause or reasonable suspicion they broke any motor vehicle laws. Evidence was sufficient to establish that House acted willfully given the sheer number of persons he seized and his behavior during the encounters.