White Collar Criminal Defense Lawyer BlogIn an important decision the Eleventh Circuit held in Sebastian v. Ortiz that an arrested person can proceed with a civil rights excessive force claim for substantial injuries arising from a handcuffing following a valid arrest. This is an appeal by Javier Ortiz of the Miami Police Department from the district court’s denial of his motion to dismiss the civil rights excessive force case against the officer by Ruben Sebastian. While driving in the City of Miami Sebastian was pulled over for a speeding traffic violation. When the officer who stopped Sebastian asked for permission to search the interior of the car, Sebastian refused to give consent. Officer Ortiz was summoned and his request to search was also denied. Ortiz then became enraged and removed Sebastian from the car and with the aid of other officers restrained Sebastian and placed him in metal handcuffs which he claims were put on in a manner to purposely cause pain and injury cutting off the circulation in his hands and cutting into the skin of his wrists. When Sebastian was placed in a vehicle for transportation to the police station, Ortiz replaced the metal handcuffs with plastic flex cuffs that were allegedly tight and were intended to cause pain and further injury. Sebastian was taken to the station and detained for more than five house still handcuffed behind his back. The charges against him of resisting an officer without violence were later dropped by the State Attorney.
No illegal seizure following a valid traffic stop
Reginald Gibbs was arrested and pleaded guilty to possession of a firearm by a convicted felon. Before he pleaded guilty to the possession, he filed a motion to suppress the evidence of the firearm seized from him by the police. The district court denied that motion and he appealed the district court’s decision.
The facts leading up to his arrest began when Miami-Dade Police Detective Lopez was patrolling an area he knew as a high crime area in Miami when he spotted an Audi blocking traffic in the direction that Lopez was traveling. He called for back-up and Detective Dweck arrived to assist. When they exited their vehicles the driver of the Audi was standing just outside his care between the Audi and another car parked on a gravel shoulder area next to the road with the space between the two vehicles just wide enough for two people to stand there. Gibbs was standing next to the driver, Jones, and both men stood next to the Audi. When the officers approached, Jones and Gibbs were channeled between the two cars. Lopez approached from one side and Dweck from the other so Jones and Gibbs would not have been able to leave without going through Lopez or Dweck. They were blocked from leaving. As Dweck approached Gibbs, Gibbs appeared to be looking around as if he was about to flee, he then immediately told the detective that he had a gun on him. Because he did not have a permit, he was arrested for carrying a concealed weapon without a permit.
Defendant had no standing to contest a vacatur of the criminal forfeiture order
Frank Amodeo pled guilty to conspiracy to defraud the United States for his failure to collect and remit payroll taxes and obstruction of an agency investigation. His offense arose from his scheme to divert his clients’ payroll taxes to his companies’ bank accounts instead of remitting the money to the I.R.S. As part of his plea agreement he agreed to forfeit many assets including properties, luxury cars a Lear jet, and the ownership of several corporations including two corporations: AQMI Strategy Corporation and Nexia Strategy Corporation. After the plea, the district court entered a preliminary forfeiture order for the assets, including the two corporations AQMI and Nexia. The government then moved for and received a final forfeiture order giving clear title to the United States.
Eventually, victims from Amodeo’s scheme filed lawsuits against his corporations, including the forfeited AQMI and Nexia. After the victims served the lawsuits on these two companies, the government moved to vacate the final forfeiture order because both were shell corporations without any assets. The government did not want to defend either corporation. The district court granted the motion and vacated the final forfeiture order as to these two corporations. Amodeo moved to reconsider the partial vacatur on the ground that the district court lacked jurisdiction to alter the final forfeiture order. the district court denied the Amodeo’s motion stating that it had vacated only the final forfeiture order in part and not the preliminary order. the trial court ruled that Amodeo lacked standing to challenge the vacatur of that order.
Solicitation of sexually explicit images from a purportedly 13-year-old girl was notice under the criminal statute
Caniff was convicted of attempting to entice a minor to engage in illegal sexual conduct, with advertising for child pornography and attempted production of child pornography. The underlying facts began with an F.B.I. agent posing as a thirteen-year-old girl on Whisper, and online website and cellphone application that allows users to text or communicate anonymously with other users. The terms of Whisper’s use provide that individuals who use Whisper must be at least 13 years of age and users between the ages of 13 and 18 must be supervised by a parent.
The agent posted a photo of another agent that was age regressed to make the person look childlike posted a message from “Mandy” the purported 13-year-old. Caniff, a 32-year-old pharmacy technician responded to Mandy and after a series of text exchanges he sent several pictures of his penis and asked her for pictures of her genitalia and of her masturbating. Eventually Mandy agreed to have sex with Caniff. When he arrived at the location they were supposed to meet, he was arrested. After Caniff waived his right to remain silent, pursuant to the Fifth and Sixth Amendments, he agreed to talk to the officers without an attorney present and said he though Mandy was 18 and she was role playing.
A defendant has no standing to contest a partial vacatur of the criminal forfeiture order
Frank Amodeo pled guilty to conspiracy to defraud the United States for his failure to collect and remit payroll taxes and obstruction of an agency investigation. His offense arose from his scheme to divert his clients’ payroll taxes to his companies’ bank accounts instead of remitting the money to the I.R.S. As part of his plea agreement he agreed to forfeit many assets including properties, luxury cars a Lear jet, and the ownership of several corporations including two corporations: AQMI Strategy Corporation and Nexia Strategy Corporation. After the plea, the district court entered a preliminary forfeiture order for the assets, including the two corporations AQMI and Nexia. The government then moved for and received a final forfeiture order giving clear title to the United States.
Eventually, victims from Amodeo’s scheme filed lawsuits against his corporations, including the forfeited AQMI and Nexia. After serving these tow companies, the government moved to vacate the final forfeiture order because both were shell corporations without any assets. The government did not want to defend either corporation. The district court granted the motion and vacated the final forfeiture order as to these two corporations. Amodeo moved to reconsider the partial vacatur on the ground that the district court lacked jurisdiction to alter the final forfeiture order. The district court denied the Amodeo’s motion stating that it had vacated only the final forfeiture order in part and not the preliminary order. It ruled that Amodeo lacked standing to challenge the partial vacatur of that order.
Investigators were not liable for omitting possibly exonerating information from an arrest affidavit
The three plaintiff’s in Paez v Mulvey case were police officers of the Golden Beach, Florida police department were arrested in 2011 on various charges of public corruption. The criminal accusations alleged that these officers fraudulently failed to report off-duty police work that would have required them to pay administrative fees to the department. The allegations in the probable cause affidavit claimed the officers were paid simultaneously by the department for work performed at the same time they were billing for off-duty work. The affidavit also claimed the officers submitted fewer hours for off-duty work than they were actually paid in order to avoid paying the town of Golden Beach a five-dollar-per-hour administrative fee for off-duty work to cover costs like insurance and the use of police vehicles.
The criminal charges against the officers were eventually dropped by the State Attorney’s Office and the case was dismissed in 2014. The officers then sued the four Miami-Dade investigators who were assigned to investigate the alleged misconduct at the Golden Beach police department and who submitted probable cause affidavits to a judge sitting the Eleventh Judicial Circuit Court in Miami-Dade County that led to the issuance of arrest warrants for the officers.
Signing another person’s name to defraud constitutes identity theft
Munksgard applied for a line of credit at a small bank operating in a few counties in west central Florida. To support his application, he submitted a surveying contract with a company Cal-Maine foods showing the signature of a Cal-Maine employee, Kyle Morris. The contract was fraudulent and Munksgard signed Morris’s’ name without knowledge or permission. He made multiple fraudulent applications for lines of credit by supporting the applications with fraudulent contracts signed by fictional employees. Munksgard was indicted on four counts of knowingly making a false statement in order to obtain a loan from an FDIC-insured bank in violation of 18 USC section 1014 and one count of aggravated identity theft for placing Morris’ signature on the Cal-Main Foods contract in violation of 18 USC section 1028A.
Prison officer’s extortion conviction upheld
Inmates at the Autry state Prison had a phone scam in which they would masquerade as law-enforcement or court officials and dupe their victims into paying them for fake infractions. Victims paid money to the inmates in the form of Green Dot numbers. Green Dot corporation sells debit cards that can be reloaded by purchasing a MoneyPak at the store’s checkout counter. Inmates possessed theses Green Dot debit cards but were not allowed to possess them in the prison so they possessed the numbers on pieces of paper and hid the papers in their cell until they could load the money. The succeeded for one inmate who collected over $15,000.
Paul Harris was a corrections officer at Autry state Prison when he discovered the scam. He worked on the shakedown team that conducted surprise search of the cell of an inmate. He began to find the Green Dot numbers and learned how the inmates obtained them and that they were worth money. Instead of turning the numbers over to supervisors, Harris loaded the money onto his Green Dot cards. Meanwhile the inmate’s scam continued. After the complaints about the scam and the FBI began to investigate, the Green Dot accounts showed that the amount Harris loaded on his Green Dote card exceeded his income. When confronted he eventually confessed.
Civil right claim fails for a victim of a prosecutor’s defamatory statements
After serving seven years in prison for a kidnapping and rape conviction, a DNA test revealed that Echols’s DNA did not match the semen recovered from the victim. His conviction was vacated by a Georgia trial court and the local district attorney, Spencer Lawton, declined to retry the case causing it’s dismissal. A state legislator later introduced a bill to compensate Echols to compensate Echols for his wrongful convictions, but Lawton wrote a letter and memorandum to several of the legislators opposing Echols’ compensation falsely stating that Echols remained under indictment. As a result of Lawton’s correspondence, the bill failed. Echols filed a 1983 lawsuit against Lawton for violating his rights under the First and Fourteenth Amendments. The trial court dismissed the lawsuit based on its finding that Lawton had qualified immunity protection from the lawsuit.
In Echols v. Lawton, the court of appeals rejected Echols’ s appeal from the trial court’s dismissal of his claim. It agreed that Echols stated a valid claim for retaliation under the First Amendment. A claim for First Amendment retaliation requires the plaintiff to allege that he engaged in protected speech, that the official’s conduct adversely affected the protected speech, and that a causal connection exists between the speech and the official’s retaliatory conduct. Here it was alleged that Lawton retaliated against Echols by his speech to the members of the legislature. Lawton’s speech contained defamatory statements that were libel per because it falsely stated that Echols had a criminal case pending against him. The court rejected Lawton’s to invoke the First amendment protection because it does not protect an official’s defamatory speech from a claim of retaliation.
Attorney should have asked for a mistrial given a judge’s repeated direction to the jury to continue deliberating
Brewster appealed from his denial of his 28 U.S.C. 2254 petition for a writ of habeas corpus in which he claimed his trial counsel rendered ineffective assistance by failing to move for a mistrial as any point during the deadlocked jury deliberations. In the decision issued in Brewster v Heztel, the Eleventh circuit court of appeals agreed and reversed his Alabama state court conviction.
Brewster was tried on two counts of armed robbery. On the second day of Brewster’s trial the case went to the jury. During the course of the deliberation the jury reported being deadlocked five times, once on the first day and four times on the second. The firmness of the deadlock increased as deliberations continued. The first note reported the split was 9 to 3. When asked by the judge whether there was any way the case would be resolved with a unanimous jury the foremen answered no. The second note reported that the jury could not reach a unanimous decision and that one juror had decided not guilty and that no amount of time was going to sway them. A third note reported that all jurors have decided firmly eleven guilty and one not guilty with no possibility of resolve. The fourth note said the holdout was unwilling to discuss the case. The fifth note informed the judge that the holdout was refusing to discuss the case and was doing crossword puzzles instead.