Wednesday, February 29, 2012


Detention Hearings in Federal Court in Tampa can result in an immediate release for a client without the necessity of a motion for Detention Hearing, when the Government fails to establish that a detention of a federal defendant is necessary under the Federal Statute § 3142(f)(2). Call a Tampa Bay Federal Defense Attorney if you believe you're under threat from a Federal Investigation, Federal Grand Jury or Federal search warrant.

Here is some of the relevant Federal Law on Detention Hearings in Federal Court:

Under the Federal Bail Reform Act, 18 U.S.C. § 3142(f)(1), the magistrate must hold a detention hearing on the motion of the prosecutor if the defendant is charged with:
·        a crime of violence.
·        any offense for which the maximum sentence is life imprisonment or death.
·        a drug offense for which the maximum term of imprisonment is ten years or more.
·        any other felony committed by a person previously convicted of two or more of the above offenses.

A hearing is also required on a motion of the prosecutor or on the judge's own motion in cases that involve an allegation of:
·        a serious risk of flight.
·        obstruction of justice.
·        intimidation of a prospective witness or juror.

Determination of Release or Detention

                        [1] Relevant Factors

In order to determine whether any condition(s) will reasonably ensure the appearance of the defendant and the safety of others, the magistrate must consider:
·        the nature of the offense charged.
·        the weight of the evidence against the defendant.
·        the defendant's physical and mental condition.
·        the defendant's ties to family and the community.
·        whether, at the time of the current arrest, the defendant was already on probation or parole or on pretrial release from another offense.

As you can see a Clearwater Criminal Defense Attorney may be able to help make the best arguments for a Defendant's immediate release at a Federal Detention Hearing in Tampa Federal Court of a Motion for a Bond Reduction or ROR in State Court in Pinellas or Hillsborough County. 

Many Thanks to Attorney Fritz Scheller in Orlando for the following information about Middle District of Florida Detention Hearings which showed some excellent lawyering skills:

St. Paul in Prison - Rembrandt
Rembrandt, Paul in Prison, 1627
Recently, I had a detention hearing before Magistrate Judge Karla Spaulding in Orlando. The client had been detained before another magistrate under 18 USC § 3142(f) at her first appearance upon the government's motion. The issue before the court was whether the government could even seek detention under § 3142 since the defendant's crime did not qualify under § 3142(f)(1). Rather than filing a motion for a detention hearing, I moved for the defendant's immediate release since the government had failed to establish that a request for detention was warranted under § 3142(f)(2). A case that supports this contention is United States v. Ploof, 851 F.2d 7 (1st Cir. 1988).

At the hearing, the Federal Magistrate agreed, concluding  that since the case did not meet the criteria under § 3142(f)(1), the government had to offer evidence that the case qualified for a detention under § 3142(f)(2). That is, the government had to offer evidence that the defendant either posed a serious risk of flight or a serious risk of danger. Serious risk of danger under that section essentially requires a showing that the defendant poses a risk of obstruction or threat to witnesses. Despite this statutory requirement, the government only offered evidence of the nature of the defendant's crimes and weight of the evidence against her. 

Monday, February 27, 2012


The Federal Appeals Court made a recent decision that helps protect your computer information even from a Federal Grand Jury subpoena based on good reason to suspect that your computer has been used for criminal activities. Although the case which is now the law in Pinellas, Clearwater and Tampa Bay involved computer crimes where the grand jury was told by law enforcement that  child pornography was on a computer, the decision protects any encrypted information on a computer. If you've been charged with any computer crime, fraud or identity theft contact a Clearwater Criminal Law Attorney as soon as possible.
A computer could harbor significant information about crime other than specific computer crimes; for example, an accounting program used for a business under a fraud investigation or an analysis of drug sales for dealer or the office computer in a medical fraud case. The decision means that if a computer is successfully encrypted by the Defendant the Government can not gain password information thru a grand jury subpoena. Of course, the Government will still have the hard drive of the computer and can still have its experts attempt to break the encryption which if successful will be used at trial against a Defendant unless you hire a Computer Crime Criminal Lawyer.
This is a well thought through opinion on whether production and decryption constitutes "testimony," and if so then is protected under the 5th Amendment of the U.S. Constitution (remember that yellowing old piece of paper up in Washington).  The legal analysis clears an area of law that has at times appeared murky by finding that this testimony of a password can not be compelled from the Defendant. 

My Computer is slow but sure...
An abacus from China, The Ming Dynasty

Friday, February 24, 2012


The Supreme Court just issued an opinion making the filing of false tax returns an aggravated felony for not only the filer but the folks "aiding and assisting in the preparation of the false tax return." Professionals in Tampa Bay & Clearwater, Florida involved in tax preparation, the burnishing - or more apt burning - of tax filing documents such as accountants, tax preparers and firefighters should be aware of the change only weeks before tax filing season. Now they'll have to redo all those forms before the day of reckoning and that may include a Clearwater Criminal Defense Attorney.

Here's the opinion in a nutshell: Willfully making and subscribing a false tax return in violation of 26 U. S. C. §7206(1), and aiding and assisting in the preparation of a false tax return inviolation of 26 U. S. C. §7206(2), can be aggravated felonies under 8U.S.C. §1101(a)(43)(M)(i), which classifies as an aggravated felony an offense that "involves fraud or deceit in which the loss to the victim orvictims exceeds $10,000," see Kawasima v. Holder, (here is the Defense Brief Filed with the Supreme Court, actual oral arguments in the case), and because the Defendant was an immigrant he will be deported for this. If you're a professional whose business is under criminal tax investigation with the threat of search warrants, arrest warrants and possible grand jury indictment call a Federal Criminal Defense Attorney immediately who is well versed in white collar crime defense and will seek the best possible outcome in the Federal system in the Middle District of Florida.

But if the Government wants to use a prior conviction, then look to the case of  Nijhawan v.Holder, 129 S.Ct. 2294 (2009) which may establish that the fact there's lost tax revenues to the government which exceeds $10,000 has to be proven beyond a reasonable doubt in any prosecution under 8 U.S.C. § 1326 where that prior conviction for filing a false tax return is to be used to enhance the defendant's sentence.

Before the internet taxes were filed in mysterious ways such as writing on the wall...This man anticipates a full refund from the Government.
 Rembrandt's Belshazzar's Feast, 1635

Saturday, February 18, 2012


Taser use by Florida law enforcement officers have led to the deaths of 65 Floridians since 2001 and with as many as 500 deaths in the United States by police using tasers inappropriately according to Amnesty International which shocks (sorry, couldn't resist) even your favorite Clearwater Criminal Defense Attorney, Amnesty in it's report, also noted:
“Of the hundreds who have died following police use of Tasers in the USA, dozens and possibly scores of deaths can be traced to unnecessary force being used,” said Susan Lee of  Amnesty International, "This is unacceptable, and stricter guidelines for their use are now imperative.”
Strict national guidelines on police use of Tasers and similar stun weapons – also known as Conducted Energy Devices (CEDs) – would effectively replace thousands of individual policies now followed by state and local agencies. Police forces across the USA currently permit a wide use of the weapons, often in situations that do not warrant such a high level of force. 

The stunning lack of protection for Floridians includes a recent Tampa Bay taser case in Pinellas Park Florida where a Florida Highway Patrol Officer left a twenty year old lady in a vegetative brain-dead state for the rest of her life after her arrest for a nonviolent crime from which she tried to escape after being handcuffed while the officer was doing paper work for her arrest. In her case a video shows that when the taser was fired her collapsed immediately, her head striking the pavement. Using a taser on someone who is handcuffed is usually not permitted and she will never recover according to a well done series of articles in The Tampa Bay Times.

Many Officers seem to falsely believe that Taser use is relatively benign not unlike pepper spray; however, the huge number of deaths and serious injuries being caused by Law Enforcement in Tampa Bay Florida and throughout the United States show that a tasers is a deadly weapons when handled inappropriately. New taser use Guidelines should be implemented to prohibit the use of tasers except in extraordinary circumstances. Clearly, Police should never be permitted to use a taser nor risk deadly force in cases where the alleged criminal misconduct is nonviolent as the risk of injury is too great. Should you or a loved one have need to speak with a Pinellas Criminal Law Attorney about your case we'll look for the best solution to your problem. 
The Florida Statute below delineates when an officer in Florida may use force. The statute does reflect in Section 776.05(3)(b) that nonviolent felonies should be treated with less force during an arrest than violent felonies as the public has less security interests in force being used to subdue any nonviolent felon for charged or uncharged misconduct. This reasoning should also apply when a nonviolent suspect attempts an escape but doesn't because of Section 776.05(2) - this portion of the statute should be changed by the Florida legislature to protect Floridians from Police use of force. Also, in light of taser dangers of deadly force with 500 deaths nationally and 65 deaths in Florida since 2001 the statute must be reinterpreted by law enforcement agencies in light of the risk of deadly force.
776.05  Law enforcement officers; use of force in making an arrestA law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any force:

(1)  Which he or she reasonably believes to be necessary to defend himself or herself or another from bodily harm while making the arrest;
(2)  When necessarily committed in retaking felons who have escaped; or
(3)  When necessarily committed in arresting felons fleeing from justice. However, this subsection shall not constitute a defense in any civil action for damages brought for the wrongful use of deadly force unless the use of deadly force was necessary to prevent the arrest from being defeated by such flight and, when feasible, some warning had been given, and: (a) The officer reasonably believes that the fleeing felon poses a threat of death or serious physical harm to the officer or others; or (b) The officer reasonably believes that the fleeing felon has committed a crime involving the infliction or threatened infliction of serious physical harm to another person. 
The Eiffel Tower receives a Taser.

Thursday, February 16, 2012


According to a new report as many as 60,000 Defendants are given court ordered mental competency psychological tests each year and of that number as many as 12,000 Defendants are found to be incompetent to stand trial, which makes your favorite Clearwater Criminal Attorney glad that he wasn't subjected to the competency tests ... 

The following questions are routinely asked to determine mental competency 
1. Colloquy—Rational and Factual Understanding of Proceedings

To determine whether the defendant’s mental condition is such that he or she lacks a rational as well as a factual understanding of the proceedings against him or her, it is a best practice for the court to ask the defendant open-ended questions such as:

  • Do you know where you are? Can you tell me?
  • Did your attorney explain to you what will happen with your case today?
  • Did he or she tell you how criminal cases proceed?
  • Did you know why you are here? Can you tell me?
  • Do you know what my job is as a judge? Can you tell me?
  • Do you know what the prosecutor's job is? Can you tell me?
  • Do you know what your attorney's job is? Can you tell me?
  • Do you know what the jury's job is? Can you tell me?
  • Can you tell me the difference between pleading guilty or not guilty?
  • Does Modern Art really make any sense to you -- if so, are you a Freudian? 

2. Colloquy—Present Ability to Consult with Lawyer and Assist in Defense

To determine whether the defendant’s mental condition is such that he or she lacks a rational as well as a factual understanding of the proceedings against him or her, it is a best practice for the court to ask the defendant open-ended questions such as:

  • Do you think your attorney is on your side or on the prosecution's side? Why?
  • I'd like you to remember these three objects: (e.g., square, apple, triangle, ball, pencil, etc.).
  • What would you do if your attorney said you should plead guilty but you didn't want to?
  • What would you do if you wanted to plead guilty but your attorney said you shouldn't?
  • Can you repeat the names of the three objects I asked you to remember?
  • Do you know whether the prosecution could make you testify at trial? What do you think?
  • Do you know why the prosecutor wears red pajamas while arguing about Freud?

Mental Competency Evaluations are often difficult for judges, lawyers and family members of the defendant and the victim to appreciate. Here are some mental competency guidelines for use in evaluations. In Florida the following law applies where mental competence is at issue for the case to proceed in criminal cases....if you should have a competency issue call a Pinellas Criminal Law Attorney:

916.12 Mental competence
(1) A defendant is incompetent to proceed within the meaning of this chapter if the defendant does not have sufficient present ability to consult with her or his lawyer with a reasonable degree of rational understanding or if the defendant has no rational, as well as factual, understanding of the proceedings against her or him.
(2) Mental health experts appointed pursuant to s. 916.115 shall first determine whether the defendant has a mental illness and, if so, consider the factors related to the issue of whether the defendant meets the criteria for competence to proceed as described in subsection (1). A defendant must be evaluated by no fewer than two experts before the court commits the defendant or takes other action authorized by this chapter or the Florida Rules of Criminal Procedure, except if one expert finds that the defendant is incompetent to proceed and the parties stipulate to that finding, the court may commit the defendant or take other action authorized by this chapter or the rules without further evaluation or hearing, or the court may appoint no more than two additional experts to evaluate the defendant. Notwithstanding any stipulation by the state and the defendant, the court may require a hearing with testimony from the expert or experts before ordering the commitment of a defendant.
(3) In considering the issue of competence to proceed, an examining expert shall first consider and specifically include in his or her report the defendant’s capacity to:
(a) Appreciate the charges or allegations against the defendant.
(b) Appreciate the range and nature of possible penalties, if applicable, that may be imposed in the proceedings against the defendant.
(c) Understand the adversarial nature of the legal process.
(d) Disclose to counsel facts pertinent to the proceedings at issue.
(e) Manifest appropriate courtroom behavior.
(f) Testify relevantly.
In addition, an examining expert shall consider and include in his or her report any other factor deemed relevant by the expert.
(4) If an expert finds that the defendant is incompetent to proceed, the expert shall report on any recommended treatment for the defendant to attain competence to proceed. In considering the issues relating to treatment, the examining expert shall specifically report on:
(a) The mental illness causing the incompetence;
(b) The treatment or treatments appropriate for the mental illness of the defendant and an explanation of each of the possible treatment alternatives in order of choices;
(c) The availability of acceptable treatment and, if treatment is available in the community, the expert shall so state in the report; and
(d) The likelihood of the defendant’s attaining competence under the treatment recommended, an assessment of the probable duration of the treatment required to restore competence, and the probability that the defendant will attain competence to proceed in the foreseeable future.
(5) A defendant who, because of psychotropic medication, is able to understand the nature of proceedings and assist in the defendant’s own defense shall not automatically be deemed incompetent to proceed simply because the defendant’s satisfactory mental functioning is dependent upon such medication. As used in this subsection, “psychotropic medication” means any drug or compound used to treat mental or emotional disorders affecting the mind, behavior, intellectual functions, perception, moods, or emotions and includes antipsychotic, antidepressant, antimanic, and antianxiety drugs.
Should this painting be tried by a jury of its peers?

Saturday, February 11, 2012


How many times can our Government take someone to criminal court over the same set of facts? The answer should be once and only once. Otherwise a not guilty verdict at trial would have no meaning nor would it be an effective bar to Government persecution rather than prosecution. 

The 11th Circuit just found that the Government can't try a Defendant twice on the same facts when it reversed the Middle District of Florida, which includes Tampa, Clearwater & St. Petersburg, in a case based on the collateral estoppel. Collateral estoppel is based on a common law doctrine that the Government should not be able to try the same issue more than once if the issue tried is an element of the crime which must be proven and the issue was already decided against the government and in a way is related to the notion of double jeopardy in Florida. This common law doctrine originally arose in civil cases but has been accepted as a defense in criminal cases as well since 1916 in the case of U.S. v. Oppenheimer and is now an important element of criminal defense law for every Clearwater Criminal Defense Attorney. 

The new Federal Court opinion from just five days ago in U.S v. EMILIANO VALDIVIEZ-GARZA noted that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” After reviewing the transcript of the previous trial, the Eleventh Circuit concluded that, based on all of the evidence presented at trial and considering that the evidence of the remaining three elements was undisputed, “the jury's verdict of acquittal [in the 2009 trial] was based upon reasonable doubt about a single element of the crime.” An element of a crime is a fact or series of facts which must be proven in order to convict someone. The Court held that because the Government is collaterally estopped from arguing the element previously determined by a jury, it cannot prove an essential element of its current case and the indictment must be dismissed. If the Government wants to convict you upon facts from which you've already been found not guilty you should get help from a crime defense attorney.
If our courtrooms looked this good we'd want a second trial, maybe even a third...