Constitution - Bill of Rights Category Archives — Page 7 of 12 — White Collar Criminal Defense Lawyer Blog Published by Miami, Florida White Collar Criminal Defense Attorney

Published on: April 25, 2017

No Double Jeopardy violation for this Pill Mill conspiracy charge

In U.S. v. Votrobek the appellants were convicted by a jury of conspiracy to distribute drugs, conspiracy to launder money and substantive charges of money laundering and maintaining a place for unlawful drug distribution. The charges arose from their operation of a pill mill, a term used to describe a medical clinic that prescribes narcotics for illegitimate purposes. The appellants first learned how to run a pill mill clinic from a Zachary Rose who operated three clinics in Jacksonville Florida. Once law enforcement began investigating Rose’s clinics, the appellants left and established their own clinic, AMG, in the fashion of a typical pill mill.

Later, Votrobek was indicted for conspiracy to distribute Oxycodone and Alprazolam in Rose’s Florida clinics but a jury acquitted him.

Less than two months after his acquittal in Rose’s Florida pill mill, a Federal Grand jury in Georgia indicted Votrobek and others regarding their involvement in AMG, charging them with conspiracy to distribute Oxycodone, Xanax, and other drugs for other than a legitimate medical purpose. He was convicted on all counts. In his appeal, he claims the district court committed plain error by not dismissing the Georgia conspiracy charges on Double Jeopardy grounds. He argued the conspiracy counts were barred by Double Jeopardy and the trial court committed plain error by not dismissing the substantive convictions based on prejudicial spillover.

Published on: February 1, 2017

No Fourth amendment violation for injuries resulting from the excessive force use of a flashbang

by The Swartz Law Firm

The issues in Dukes v Deaton were whether a police officer who threw a diversionary device known as a “flashbang” into a dark room occupied by two sleeping individuals without first visually inspecting the room is entitled to qualified immunity against a section 1983 lawsuit claiming excessive force and whether the officer was entitled to qualified immunity against a complaint of assault and battery. Narcotics officers of the Clayton County Sheriff applied for a search warrant of Jason Ward’s apartment based on confidential informant’s information that he sold narcotics out of his apartment. The search warrant application noted that Ward was known to carry a handgun. The application sought a “no-knock” provision because “drug dealers commonly use weapons, dogs, and barricades to hinder law enforcement in the execution of their duties. Prior to execution of the warrant the SWAT team held an operational meeting to discuss the plan of entry. The Defendant and other SWAT members were given flashbang devices to uses. These are classified as explosives that can generate heat in excess of 2,000 degrees centigrade and over 150 decibels of noise for less than one-half second. Because they have the potential to cause serious bodily injury, the officers received official instruction to visually inspect an area first before deploying a flashbang.

The search warrant execution plan did not call for Deaton to deploy his flashbang, however the plan gave all SWAT team member the authority to use more flashbangs if needed. As the SWAT team executed the search warrant at 5:30 a.m., Deaton deployed his flashbang threw the bedroom window where Dukes was sleeping. The explosion caused Dukes to suffer severe burns and she spent three days in the hospital.

Dukes filed a complaint against Deaton and the Commander Branham alleging a violation of Duke’s right to be free from excessive force under the Fourth Amendment and a state law claim for assault and battery against Deaton.

The district court granted motions to dismiss finding the officers were entitle to qualified immunity against the excessive force and against the assault and battery claim and filed this appeal.

Published on: December 29, 2016

Limitations upheld in cross examining a cooperating witness about the sentencing guidelines

by The Swartz Law Firm

The appellants in U.S. v. Rushin were correctional officers at the Macon state Prison in Georgia who were charged and convicted of conspiracy to obstruct and obstruction of justice stemming from alleged abuses of prisoners and the subsequent cover ups while they were working as members of the Correctional Emergency Response Team, (CERT) which is a specially trained group responsible for responding to and controlling disturbances as the Macon State Prison. Of the three issues raised only one was addressed in depth by this opinion and that was whether the district court improperly limited the cross examination of cooperating witness in violation of the defendant’s Sixth Amendment rights. The case arose from the beatings of several inmates at the Macon State Prison by CERT members against certain inmates in retaliation for assaulting officers. The CERT members would then take the inmate to the medical unit and lie about how the inmates’ injuries were sustained.

Multiple members of the CERT entered plea agreements and cooperated with the government by testifying at trial. The defense counsel wanted to cross-examine the cooperating witnesses about their potential sentences had they not cooperated. The government requested a limitation on the defendants cross examining witnesses about to the specific numerical sentence that could have been imposed had they not cooperated as this would speak to the potential sentences that could be received by the defendants and encourage jury nullification.

The district court granted this motion explaining that the defendants were permitted to inquire into whether the cooperating witnesses about a plea agreement, that they face a more severe penalty prior to cooperating, and that the witness received or expected to receive benefits in exchange for their testimony (charges dropped or consideration of a sentence reductions). However, the defendants’ attorneys were not permitted to inquire as to the statutory sentencing range for charges against cooperating witnesses.

Published on: December 21, 2016

Case dismissed for Speedy Trial Act violation but the defendant could still be prosecuted again

by The Swartz Law Firm

Ammar was convicted and sentenced to life following trial for robbery, conspiracy to commit robbery and using or carrying a firearm in relation to a crime of violence. In United States v. Ammar he challenged his conviction contending that the district court should have dismissed his indictment pursuant to the Speedy Trial Act. The Sixth Amendment of the Constitution provides that in all criminal prosecutions the accused shall enjoy the right to a speedy trial. To enforce this provision Congress passed the Speedy Trial Act which provides that the trial must begin within 70 days of either the filing of the indictment or the date the defendant first appears before a judicial officer to answer the charges, whichever occurs later. If a defendant is not tried within that window of time then the district court must grant the defendant’s motion to dismiss the indictment.

A district court may grant a continuance of the trial date when the ends of justice support the continuance and the district court is required to say its reasons for finding that the ends of justice served by the granting of a continuance outweigh the best interest of the public and the defendant in a speedy trial. Furthermore a defendant’s agreement to waive the protections of the Act cannot by itself justify an ends of justice continuance because the public interest in a speedy trial is also protected by the Act.

Ammar was detained following his arrest without a bond. Soon after the district court held a scheduling conference with the defendants and scheduled trial to begin about one year later. Ammar appealed the magistrate’s detention order contending that the district court set an extended trial date over his objection and that the extended detention pending a trial more than a year from the date of the indictment violated his due process and speedy trial rights. Prior to trial Amar filed his motion to dismiss on speedy trial grounds.

Published on: December 19, 2016

The manner of seizure for a mental health evaluation violated the Plaintiff’s fourth amendment right

by The Swartz Law Firm

Phyllis May was involuntarily taken to a hospital police officer Tommy Allen of the City of Nahunta, Georgia Police Department for a mental health evaluation. She subsequently sued pursuant to 42 U.S.C. 1983 for an unlawful seizure in violation of the Fourth and Fourteenth Amendments. May took this appeal from the district court’s order granting Officer Allen’s motion for summary judgment on the basis of qualified immunity. The issue in May v. City of Nahunta, Georgia is whether an otherwise authorized mental-health seizure was converted into an unconstitutional one by virtue of the seizing law enforcement officer’s conduct.
May was the sole care taker for her Alzheimer-stricken mother fell into a deep sleep after a taxing few days of caring for her mother. When May’s brother was unable to rouses May from her sleep he called 911 and four emergency medical technicians arrived in response. Officer Allen also arrived at the residence in response to the 911 call requesting his assistance and was told information by the EMT and his observations, he decided to seize May in her bedroom and transport her to the hospital for a psychological evaluation.
In conducting the mental health seizure Officer Allen asked the EMTs to leave the room and locked the door behind and informed May that she was going to the hospitals and instructed her to change from her nightgown to more suitable clothes. Despite her urging he refused to leave while he changed, handed her clothing, touched her shoulder roughly in an effort to pull off her nightgown, instructed her to remove her shorts and first put on her undergarments, and when she refused he insisted that she will while patting his gun. Officer Allen remained in the locked room alone with May for 15-20 minutes while ignoring May’s sister’s request from the other side that he open the door.
After she was taken to the hospital where she spent two hours she was released when it was determined there was nothing wrong with her.

Published on: December 13, 2016

Lawsuit against Douglas County Sheriff not barred by qualified immunity

by The Swartz Law Firm

In Bailey v. Wheeler, the court reviewed the district court’s decision denying the defendant, Wheeler, qualified immunity protection in a section 1983 action by Bailey. Here is how the facts unfold. Bailey, an officer for the City of Douglasville, Georgia, filed written complaint with his chief reporting that police officers from his department and from the Douglas County Sheriff’s Office were racially profiling minority citizens and committing other constitutional violations. Bailey complained that law-enforcement officers made racially offensive comments and jokes about minorities. Eventually repercussions of Baileys’ complaints followed and soon after he was terminated from his position with the police department. He appealed his termination to the City of Douglasville complaining that he was fired for speaking out against profiling and other unconstitutional conduct by the police department and the Sheriff’ Office deputies. The night the city held a hearing he was followed by two deputies that stared him down. The next day Major Tommy Wheeler of the Douglas County Sheriff’s Office issued a county-wide alert to all law-enforcement officers warning that Baily was a “loose cannon” who presented a danger to any law enforcement officer in Douglas County and directing officer to act accordingly. He issued a BOLO with his picture. For the second day in a row law enforcement vehicles from both the Sheriff’s Office and the Police Department followed Bailey as he drove his personal car. About three weeks later Bailey was permitted to return to work at the Douglasville Police Department.

Bailey filed a lawsuit claiming a violation of 42 U.S.C. §1983 for retaliation for exercising his First Amendment rights and a claim that Wheeler had defamed Bailey under Georgia law. The district court denied Wheeler’s claim he was entitled to qualified immunity and filed this appeal.

Published on: November 3, 2016

Tasing a suspect while in handcuffs was excessive force in violation of the Fourth Amendment

by The Swartz Law Firm

In Wate v Kubler, a Civil Rights lawsuit for the wrongful death of Barnes, it began when Barnes went with his aunt to the Honeywell Island Beach in Pinellas County, Florida for a baptismal ritual in the water along the Beach. While in the water Barns began acting erratically by flailing, flopping, and thrusting his arms and body and yelling loudly about a demon. His actions attracted the attention of a law enforcement officer on the Honeywell Island that day. When Barnes failed to comply with the officers’ order to calm down and leave the water, a struggle ensued and the officer placed a handcuff on one of his hands. More struggling occurred resulting in the officer placing Barnes in a choke hold and dragged him out of the water by his head.

Barnes was just lying on the beach with the officer kneeling beside him as the officer tried to secure both hands with the handcuffs. The officer continued to hit him as he attempted to place the other arm in handcuffs. After the handcuff was secured Barnes spewed blood and fluids from his mouth and struggled to breath. When Barnes continued to struggle the officer pepper sprayed his eyes and hit his face multiple times.

Another officer Kubler, arrived on the scene in response to the first officer’s call for help. At this point eyewitnesses stated that when the first officer had Barnes pinned down, Barnes was starting to wear down and that the situation was under control. Witnesses testified that Kubler stood over Barnes and put his foot on his buttocks and Kubler put his knee on Barnes’ back and that Barnes was immobilized. After warning Barnes not to raise up (witnesses say he was arching his back when the officer’s foot pressed against his buttocks) Kubler threatened to taser Barnes and after he struggled Kubler deployed the taser a few minutes later. Kubler used the taser a total of 5 times. Barnes became still and another officer on the scene noticed Barnes was not breathing. Two days later Barnes died. The autopsy showed case of death to be asphyxia contributed by blunt trauma and restraint.

Published on: October 31, 2016

No Fourth Amendment violation for deputies’ warrantless entry and search and seizure

by The Swartz Law Firm

Fish v. Brown involves a civil rights lawsuit against two Holmes County, Florida, deputy sheriffs for entering the plaintiff’s home without a warrant and for a search and search in violation of the Fourth Amendment. This is an appeal from the district court’s dismissal on the ground that the deputies were entitled to qualified immunity.

The Plaintiff, Fish, had a sexual relationship with Margo Riesco which ended with ill feelings when Fish told Riesco’s husband about their affair. Unconnected to their relationship, a Florida State court entered an injunction in favor of Fish’s sister and brother-in-law protecting them from Fish and his acts of domestic violence. The injunction included a prohibition from having any firearm in his care custody or possession. Riesco learned of the injunction through the sister-in-law.

Riesco wanted to retrieve her personal belongings from Fish and before driving there she stopped at the Sheriff’s office to request an escort to Rieso’s house, claiming she that she feared for her safety during the encounter. She called Riesco to tell him she was in route to his home for the purpose of retrieving personal items left there.

When they arrived Riesco walked through screen porch doors into the sunroom and the deputies followed. Fish came to the door and the deputies stood behind her. She told Riesco why she was there and that she brought the deputies to watch her so she would not steal anything of hers. He allowed Riesco into the house and the deputies followed. While inside the house they spotted his firearms in the bedroom and he was placed under arrest for violating the domestic violence injunction and resisting without violence. After the criminal charges were dismissed he filed a federal civil rights claim for false arrest, illegal search and seizure, and claims under state law for false arrest, imprisonment, and malicious prosecution

Published on: October 27, 2016

Strip search of student found to be unconstitutionally excessive

by The Swartz Law Firm

In DH v. Clayton County School District, Defendant McDowell appealed the district court’s finding that as assistant principal his strip search of a minor student was a violation of clearly established constitutional law. McDowell, an assistant Principal at a public school in Georgia, conducted a strip search of a 12-year old 7^th grader in an office, based upon reports and his individualized suspicion that DH possessed marijuana at school DH. Prior to the search McDowell discovered marijuana in the backpack of another student who said that DH his classmate also had marijuana. In response to D.V.’s implication of DH, McDowell searched DH, starting with his backpack. When no marijuana was found, he had DH remove his clothes down to his underpants. When nothing was found in his clothes McDowell instructed him to remove his underpants exposing his genitals to McDowell. Another officer was present along with the other student suspects. No marijuana was found.

McDowell raised the defense of qualified Immunity. First the court considers whether McDowell’s search deprived DH of a constitutional right. The second determination was whether the law was clearly established so as to justify imposition of §1983 liability. In determining whether a search of a student violates the Fourth amendment protection against unreasonable search and seizure the court made a two-prong inquiry. First, it asks whether the search is justified at its inception and there are reasonable grounds for suspect in that the search will turn up evidence of a violation of law or school rules, and second, whether the scope of the search is reasonably related to the circumstances which justified the interference in the first place.

Published on: October 4, 2016

An arrest pursuant to a civil writ of bodily attachment for unpaid child support is equivalent to a warrant under the Fourth Amendment

by The Swartz Law Firm

In U.S. v Phillips the defendant challenged the arrest on a civil writ of bodily attachment for unpaid child support on the grounds of a violation of the Fourth Amendment. As a result to his stop and arrest police officer discovered he was in possession of a firearm at the time he was being arrested on the writ. The issue addressed here was whether a writ of bodily attachment is a Warrant within the meaning of the Fourth Amendment of the U.S. Constitution so that the officer found the firearm during a valid search incident to arrest.

A Florida court issued a writ of bodily attachment for unpaid child support that ordered the police to take Phillips into custody and confine him to the county jail but the writ allowed Phillips to purge this contempt and immediately released from custody by the payment of $300. The police also wanted to question Phillips about a recent shooting in Miami. When an officer who recognized him and knew about the writ of bodily attachment, approached him, the officer patted him and found the loaded .380 caliber firearm. Because Phillips had a prior drug felony, he was indicted on one count of being a felon in possession of a firearm and an armed career criminal.