Federal Trial Issues

Published on: April 30, 2018

Damage claim for police shooting denied on grounds of qualified immunity

This is an appeal by the estate of Shaw who was killed by a Selma Alabama police officer after the district courted granted a summary judgment in favor of the defendants. Shaw’s estate filed a lawsuit against the City of Selma, the police chief and the police officer for excessive force and false arrest under 1983 as well as several state law tort claims. Because the court found that Shaw posed there a threat of physical harm at the time he was shot, the appellate court upheld the dismissal.

Here is how the facts unfolded. The Selma Police received an emergency call from a Church’s Chicken restaurant about an incident involving a 74-year-old mentally disturbed man who attempted to enter the restaurant but was turned away because he had apparently there a few days earlier armed with a knife. When officers arrived, he was spotted at a nearby laundromat and the events were recorded on the officer’s body camera. There Shaw picked up an axe. The officer drew his weapon and ordered him to put down the axe. As Shaw left premises and walked toward the Church’s restaurant the officers followed him. At one point Shaw turned toward the officer shouting at the officer to “Shoot it”. When Shaw was less than five feet away moving toward him with axe in hand and still yelling at the officer to shoot it, the officer fired at Shaw and killed him.

Published on: April 20, 2018

New trial ordered because judge failed to voir dire about same sex prejudices

by The Swartz Law Firm

In this appeal Plaintiff Raymond Berthiaume sued Lieutenant David Smith of the Key West Police Department and the City of Key West. In his lawsuit he claimed he was falsely arrested, and claimed he was the victim of excessive force, false imprisonment, battery, and malicious prosecution at the hands of the officer who arrested him during an incident that took place during the Fantasy Fest Parade events in Key West.

The facts stem from an altercation between two gay men who formerly had been partners. Both men attended the Fantasy Fest parade with friends after which they went to a gay bar. Berthiaume was not ready to leave the bar when Jimenez was, so Jimenez waited by his car for a short time but returned to the bar to find Jimenez still there. Berthiaume led Jimenez out of the bar with his hand on Jimenez’s upper arm. Jimenez took the car keys from Berthiaume and ran down an adjacent alleyway. Berthiaume chased after Jimenez to retrieve his keys. Several police officer patrolling the activities observed the activities between the men and believed that they were witnessing a fight or altercation between the two men. Officer Smith ran toward the alley to intervene and he pushed Berthiaume on the shoulder to stop him from pursuing Jimenez causing him to fall and damage his wrist and jaw. Jimenez explained they were former partners and were trying to get back to together. Despite Jimenez’s unwillingness to press charges against Bethiaume, Smith arrested him and charged him with domestic battery.

Published on: March 29, 2018

No liability verdict upheld in Police shooting

by The Swartz Law Firm

In Knight v. Miami Dade two Miami Dade Police officers discharged their firearms at the SUV Cadillac driven by the plaintiffs killing both plaintiffs. The estate filed a complain against the officers and the Miami Dade police department for various civil rights violations and claim arising under Florida state law and this is an appeal form lower court rulings against the Plaintiffs. The plaintiffs were driving in the Cadillac after leaving a Miami night club. A police care began to follow them when they allegedly ran a red light. The plaintiffs denied running any red lights. The officers attempted to make a traffic stop using their PA system, but the care kept driving. When the Cadillac came to a stop at a dead end. The plaintiff’s witness who was a passenger said in a deposition that the car was not moving, decedent’s hand was on his side, and shots were fired into the car. However, in a statement made just after the incident the witness said that Plaintiff started backing up toward the officers and they began firing into the moving vehicle. As the care reversed it collided into the police car.

The case ultimately went to trial on the 1983 civil rights claim and the assault and battery claims against the officers

In the appeal the plaintiffs argue that there were six errors that entitle them to a new trial. The issues raised include the admission of evidence from the defendant’s police practice expert, the exclusion of the plaintiff’s ballistics and reconstruction experts, the exclusion of evidence showing violations of the Police Department’s pursuit policy, the refusal to give a specific jury instruction, the admission of some criminal history evidence, and the failure to address the prejudicial nature of the defendant’s opening and closing statements.

Published on: March 23, 2018

New trial ordered in civil rights lawsuit for officer shooting

by The Swartz Law Firm

In this civil rights lawsuit involving an officer shooting, the plaintiff, Evett Stephens, claimed a constitutional violation as a result of the excessive force used against him by Palm Beach Sheriff deputy Adams Lins as an individual and against Sheriff Ric Bradshaw in his official capacity as the sheriff of Palm Beach County. This is how the facts unfolded. Deputy Lin was on police duty monitoring traffic during school bus pickups observed Stephens riding his bike on the wrong side of the road. Deputy Lin decided to stop Stephens for some reason. Stephens claimed he was holding a cell phone to his ear while riding his bike prior to the stop. Lin says he never saw the cellphone. Upon hearing the sirens of Lin’s patrol car Stephens dismounted from is bike. Lin instructed Stephens to walk toward him while showing his hands. According to Lin, Stephens turned away from Lin as he began to approach Stephens. As soon as Stephens turned away, Lin shot Stephens four times leaving him a paraplegic.

The district court granted a summary judgment in favor of Sheriff Bradshaw as to the Monell claim against him following a length hearing. At trial, the jury returned a verdict against Lin for the 1983 excessive force claim and against Sheriff Bradshaw for the state court battery claim.

Published on: February 6, 2018

Conviction for fraudulent investment scheme upheld

by The Swartz Law Firm

Lawrence Foster was charged and convicted in Miami following a federal court jury trial of conspiring to commit wire fraud and six counts of wire fraud in violation of 18 U.S.C. section 1349. He raised three challenges. First, he claimed the trial judge erred by denying his motion for judgment of acquittal. Second, he claimed the loss amount was incorrectly calculated. Third, he claimed his verdict should be set aside due to jury misconduct.

Foster was charged with defrauding investors who thought they were investing in property in the island of Rum Cay in the Bahamas. He solicited investors by offering them two investment opportunities. They could either purchase Rum Cay land or lend money to his company Paradise is Mine (PIM) in return for a security interest in the land. Foster used several marketing strategies including celebrity endorsements to promote PIM. He also represented to prospective investors that hundreds of news organizations including USA Today and the Wall Street Journal had featured articles about PIM. But PIM was a scam because it never owned the land that it claimed it owned and the newspaper reports were not legitimate. Some articles were created by Foster himself. The investors never received tit to the land.

Published on: December 29, 2017

Conviction for selling firearms on the dark web upheld

by The Swartz Law Firm

Focia’s conviction arose from his sale of firearms on the dark web. He was charged with a violation of 18 USC section 922(a)(1) for transferring firearms to a resident of a state other than his own without a federal firearms license in violation of 18 USC section 922(a)(5). In his appeal he challenged the sufficiency of the evidence arguing that the government failed to prove that he and each transferee were not residents of the same state at the timer of each sale. He claimed that the government failed to prove that Focia was a resident of Alabama, a different state than where the buyers lived in Nebraska and New Jersey. He argued that the government only established only that Focia used to live in Alabama at some point before the firearm sales and that he was present in Alabama several times over the span of two years.

The court of appeals rejected this challenge finding that the government introduced sufficient evidence of Focia’s residence at the time of the sale to sustain his conviction. The government presented evidence directly tying Focia to Alabama including his driver’s license showing an address in Alabama that did not expire until three months after Focia completed his transaction with the buyer and documents from E-trade Financial and a pawn shop in Alabama bearing Focia’s name and address in Alabama. Additionally, the government introduced powerful circumstantial evidence from which a jury could reasonably infer that Focia resided in Alabama at the time he shipped firearms to undercover agents located in the two states.

Published on: December 28, 2017

Conviction for Miami drug courier upheld

by The Swartz Law Firm

Max Jeri was convicted and sentencing for importing 7.95 kilograms of cocaine into the United States after he arrived from Lima Peru at the Miami International Airport. The evidence produced at trial showed that after his arrival in the Miami Airport a Customs and Border Patrol Officer inspected his luggage and discovered cocaine secreted in various items in his luggage including children’s jackets, notebooks, purses, and pillows. He gave the officers the person for whom he was transporting the items and was a travel agent and a long time friend who offered him a free round trip ticket to Peru and in exchange she asked him to take two bags of merchandise to her sister and to return to New York with the two bags.

He said the items he took to Peru were electronic items toys and shoes. For the return flight the sister went with him to the airport where she showed him the contents of the suitcases, which he checked and boarded the flight to Miami. Following the seizure, Jeri volunteered to make controlled calls to the friend in an attempt to elicit inculpatory comments about the drugs in the suitcase, but the friend repeatedly claimed the bags were clean. The agents attempted to arrange a controlled delivery of the drugs but the person who came to pick up the packages refused to take them.

Published on: October 5, 2017

Evidence was sufficient to prove possession of child pornographic images

by The Swartz Law Firm

In U.S. v Little received multiple emails on his smart phone containing child pornography on December 21, 2013, while he was in Texas. At the time he was in Texas he opened the email and the pornographic attachments. Then Little moved from Texas to Tampa Florida to work on a shrimp boat. Before departing on the boat he emailed back and forth to a man named Dominic Hall asking for more pictures. The day after he returned from the boat trip he responded to Hall’s email by attaching a child pornographic photo. He used that same email account to send a one email containing child pornography.

Little was charged with transporting child pornography on January 26, 2013 and with possessing one or more depictions of child pornography from December 21, 2012 through January 26, 2013. Prior trial he filed a motion to dismiss both counts for improper venue which the trial court denied and following trial he moved for a judgment of acquittals as to the possession count that was also denied.

Published on: September 16, 2017

With no evidence Defendant knew he possessed drugs, the conviction is thrown out

by The Swartz Law Firm

In U.S. v. Louise, the Customs and Border Protection (CBP) was tipped off that the Ana Celia, a coastal freighter used to export goods from the United States to Haiti, was returning from Haiti to Miami carrying narcotic drugs. While the boat was docked in the Miami port, CBP agents set up surveillance of the boat. At one point the agents watched as a forklift picked up boxes from the boat and that were driven off the boat. The owner of the boat, Ernso Borgella, directed the forklift driver to place on the dock. Later a Nissan car which pulled up and Borgella told the driver to pull the car to park near the boxes. Two unidentified men loaded the boxes into the back seat of a white Nissan and Louis began to drive slowly out of the shipyard while Bogella walked alongside. After driving past the front gate of the shipyard the Nissan was stopped by law enforcement vehicles with lights and sirens. Louis exited the car and began to run. The agents found that the boxes in the back seat contained 111 bricks of cocaine.

Louis was charged with conspiracy to possess with intent to distribute cocaine and with possession of cocaine. After a two-day federal criminal trial the jury found Louis guilty on both counts and the district court denied his motion for an acquittal. In this appeal Louis challenged his conviction arguing that the court should have found the evidence was insufficient to find he conspired to distribute drugs.

Published on: July 22, 2017

Fugitive defendant in Saudi Arabia cannot challenge his kidnapping charge from outside the United States

by The Swartz Law Firm

In U.S. v. Shalhoub the court addressed the issue of whether the denial of a motion for special appearance of counsel to seek the dismissal of an indictment on the ground that the defendant is a fugitive from justice is an immediately appealable collateral order. If not then the issue becomes whether the court should issue a writ of mandamus to compel a ruling on the motion to dismiss the indictment without requiring the defendant to appear.

This is how the facts unfold. Shalhoub, a citizen and resident of Saudi Arabia married a woman in Miami in 1985 and divorced four years later. A Florida judge gave Shalhoub and his ex-wife full shared parental responsibility over their only child. Shalhoub was indicted in 1997 for one count of parental kidnapping in violation of the International Parental Kidnapping Crime act, which made it a crime to remove a child from the United States with intent to obstruct the lawful exercise of parental rights. He was never arrested and status was fugitive.

In 2015, Shalhoub filed a motion in Miami federal criminal court to allow his counsel to appear specially and seed a dismissal of the indictment arguing that the incitement lack factual specificity, challenge the Venue of the federal kidnapping law as contravening the laws of Saudia Arabia, along with other challenges.