DOJ Changes Position on False Statements Prosecutions

The federal government will frequently charge individuals with a violation of 18 USC 1001 for giving a False Statement to a Government Agency.  To be convicted under that section, a person must act “willfully” in making false statements to investigators.  Recently, the U.S. Department of Justice (DOJ) has quietly adopted a more defense-friendly position on such prosecutions.  Federal prosecutors are now told that in order to prove a person acted willfully in providing a false statement to a federal agency, they must prove beyond a reasonable doubt that the defendant knew that making the statement was unlawful – not just that the statement was false.  This is a material change in the government’s charging decisions that could affect future white collar investigations and prosecutions under Section 1001.

Such prosecutions have ensnared such high-profile defendants as Martha Stewart and former Illinois Governor Rod Blagojevich.  In short, the government must now prove that the statement was false and the person making the false statement knew that making a false statement was unlawful.

 

Tampa Teen Arrested with Alleged Plans to Surpass Columbine Massacre

“I just did the dumbest thing ever [sic]” was 17-year-old Jared Cano’s Facebook status update hours before he was arrested for allegedly plotting to kill school officials and students with home-made bombs.

What Cano is referring to as “the dumbest thing ever” is unclear, but we do know that immediately after a anonymous tip came in about Cano’s plan, the bomb squad was at his Tampa apartment. It is likely that Cano had shared his plan, and that someone called the police. Some are calling this anonymous tipster a “local hero”.

Cano had a manifesto found by police that detailed his every move and motive. According to an ABC article, his goal was to surpass “the number of students who were killed and injured during the 1999 Columbine High School massacre.” With such serious claims found in Cano’s manifesto, it will be interesting to see what route his criminal defense attorney advises him to take.

With an existing criminal record to begin with, Cano has been accused of threatening to throw, project, place or discharge a destructive device, possession of bomb-making materials, cultivation of marijuana, possession of drug paraphernalia and possession of marijuana.

Cano currently sits in juvenile lockup while the state attorney’s office decides whether or not he will be charged as an adult. Given the seriousness of these allegations and the defendant’s age, he will likely face these charges in adult court.

How are you prosecuted for Mortgage Fraud if there is no Federal Statute?

While there is no federal statute that references “mortgage fraud” directly, recent news articles abound on the subject. In four separate cases in South Florida, the U.S. Attorney accuses 27 of mortgage fraud, according to an August 4th article posted on LoanSafe.org. On the same day, an Arizona builder pleads guilty to mortgage fraud, according to KTAR.com and fox news cited that 14 have been charged in a $60 Million mortgage fraud scheme. The list goes on…

Cases involving “mortgage fraud” are typically prosecuted under existing federal statutes involving conspiracy, wire fraud, bank fraud, false statements to an FDIC-Insured Bank and others. Ancillary offenses, including tax fraud and bankruptcy fraud can also be charged following a “mortgage fraud” investigation. Depending on the number of properties involved and the dollar amount of the loss, penalties vary widely and can involve real estate agents, mortgage brokers, real estate attorneys, title closers, appraisers, and straw buyers. Some of the schemes in the news are fairly elaborate, involving fraudulent mortgage applications, fake W-2s and tax stubs, fraudulent short sells and even arson and insurance fraud.

Sometimes innocent consumers unknowingly fall victim to unscrupulous real estate agents, bankers and brokers and may find that they are under investigation by the government for “mortgage fraud”. When this happens, it is critical to contact an experienced federal criminal defense attorney before speaking to the government.

Casey Anthony: A not-so-free woman after all?

We’ve spent months following the Casey Anthony case, and until this past Monday, we didn’t think there would be anything left to write about. Then news broke that Casey Anthony had 72 hours to report back to Orlando to meet her probation officer.

We still don’t know Casey Anthony’s current whereabouts, but if she is ordered to serve probation, she will be required to provide an Orlando address to her probation officer. In most cases, the parolee’s address is public record, but exceptions can be made and given the public’s opinion in this case, that exception may be considered.

Anthony is facing the possibility of probation for check fraud charges that she plead guilty to last year. The confusion lies in whether or not Anthony’s jail time counted towards that probation. Anthony’s criminal lawyer argues yes, but Judge Stan Strickland says no. According to anMSNBC article, “Strickland said at the time he had meant that Anthony — found not guilty of killing her daughter and released in July — should serve the probation order if and when she was freed.”

On Tuesday, Cheney Mason filed a motion to disqualify Judge Strickland. Today, the judge has recused himself and the matter has been reassigned to Chief Judge Belvin Perry, the judge who presided over Anthony’s first-degree murder trial.

We will see whether Casey Anthony will be required by Judge Perry to return to Orlando to serve probation and whether she will abide by the court’s order. If a bench warrant issues for her arrest for failing to return to Orlando, the fever to locate her will be heightened. Media and law enforcement from across the country will seek to capture her arrest and return her to Florida. The public spectacle surrounding Casey Anthony will surely continue.

DUI Suspension Rules Change

Last Thursday, the Florida Supreme Court ruled that the state can no longer suspend motorist’s license if they refuse a DUI test. What’s the catch? That is only if the driver felt the refusal did not follow a lawful stop.

Prior to this ruling, Florida’s “implied consent” law required that if police officials had probable cause to pull a suspected motorist over and they denied the sobriety test, their license would immediately be suspended. Officials never had to consider the legality of the stop.

In the article, DUI License Suspension Rules Will Change After Ruling, attorney David Robbins says, “This gives defendants a fighting chance.” He and another attorney believed that since law enforcement had the ability to suspend someone’s license right on the spot, suspects had no chance to appeal the decision.

So what does the passing of this law tell us? It’s safe to say that we’ll see an uptick in the number of people that will challenge the lawfulness of their stop.

This law applies to DHSMV administrative suspension proceedings and excludes all criminal DUI cases.

What NOT to do after an arrest…

There are many mistakes made before and after an arrest is made, the biggest behind breaking the law is making statements to law enforcement without a lawyer present. In this video found on myYouTube channel, you will find a sample of the advice I would give to you if I was your criminal defense attorney.

“The singular biggest mistake that everyone makes is they make statements to the police in the hopes of making their situation better and all they’ve done is hurt themselves.”

Although it is hard not to make any statements during this process, remember that anything you say will be used against you in the court of law.

Peer Review Rating on Martindale-Hubbell

I am pleased to announce that I have received a Peer Review Rating on Martindale-Hubbell: AV® Preeminent™ 4.6 out of 5! This was quite an honor and I would like to thank all of my colleagues for their reviews. I’d also like to take a moment to explain how one obtains a review on Martindale-Hubbell and what it means.

The Peer Review reflects a combination of achieving a Very High General Ethical Standards rating and a Legal Ability numerical rating. Prior to obtaining a review, a lawyer must get a specific number of responses and based on if those responses meet the criteria, they will move to the next step in the rating process. One requirement is that the lawyer receives a “Very High” rating within the General Ethical Standards measuring the attorney’s conduct, ethics, reliability, diligence, etc.

The next step is the Legal Ability numerical rating. Lawyers are rated on a scale of 1 (lowest) – 5 (highest) based on five performance areas: legal knowledge, analytical capabilities, judgment, communication ability, and legal experience.

With the two ratings combined, the Martindale-Hubbell Peer review rating is calculated and given a rating number and term. The guidelines for what each rating means are explained on the Martindale website) as:

AV® Preeminent™ (4.5-5.0) – An AV® certification mark is a significant rating accomplishment – a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.
BV® Distinguished™ (3.0-4.4) – The BV® certification mark is an excellent rating for a lawyer with some experience. A widely respected mark of achievement, it differentiates a lawyer from his or her competition.
Rated (1.0-2.9) – The Peer Review Rated designation demonstrates that the lawyer has met the very high criteria of General Ethical Standing.

I am proud to say that my rating of 4.6 out of 5 lands me in the AV® Preeminent™ category. Again, I want to thank my fellow members of the bar and judiciary for this Martindale-Hubbell rating.

“No Refusal” DUI Checkpoints- Could Florida see more in the future?

Towards the end of last year, we heard the idea that “no refusal” DUI checkpoints could be introduced to Tampa’s fight against drunk driving.

The “no refusal” checkpoints would consist of having a judge on scene, allowing them to issue a warrant for the driver in question requiring that they take a blood test to acquire if the driver was intoxicated.

Currently, a blood test is only to be used when there is serious injury or death involved. Obviously anyone can agree to a consensual blood test but it is very unlikely that anyone would.

According to an article from Floridatoday.com, an appeals court in Daytona on Tuesday questioned whether or not law enforcement could forcefully obtain a blood sample in certain DUI cases. This case dates back to 2009 when Gregory Geiss was pulled over for swerving between lanes. There was no serious injury or death involved but a judge was on scene, a warrant was issued, he had to take a blood test and was charged with a DUI.

The judge in the 2009 case did not allow the blood evidence to be used in the courtroom, but later the state appealed. Two arguments surfaced: Is blood a searchable property? Is the searching of blood an invasion of privacy?

According to the article, Defense Attorney Ernest Chang called the forced tests, “a judicial expansion of powers.”

In 2003, there was a similar case where the defendant was charged with a DUI because of a blood test. In this case, a panel of circuit judges decided in favor of the state 2-1.

It will be interesting to see how the circuit judges in Daytona decide on the Geiss case. With what has happened in past cases, and the decision of this case, we will see if the “no refusal” DUI checkpoints will make way to Tampa anytime soon, or if the current publicity to the Geiss case will put a hold on that.

Facebook Aids to Fighting Crime

Facebook is everywhere these days and is not just being used as a personal way to stay connected to friends. Sheriff’s offices around the country have been utilizing Facebook as another way to get information out to the public, and for the public to relay information back to Crime Stoppers.

On Monday morning, the Polk County Sheriff’s office posted on Facebook a video of a man stealing at 75 year old woman’s wallet in a local laundromat. Two hours later an anonymous source contacted Crime Stoppers and reported who the man was and where he worked. Sure enough, it was the right suspect and the man was charged with petty theft. Bay News 9 covered the story and that video can be found on their website.

Although this was a smaller crime, think about the power that Facebook and social networking has. Not only do crimes get solved thanks to fan pages, but since Facebook is so accessible, everyday citizens can act as crime stopping heroes.

Polk County Sheriff’s office updates the page daily and have said that this is not the first crime that Facebook fans have helped them solve. They send all press releases and Crime Stopper bulletins to Facebook where they have over 7,000 fans.

Other Sheriff’s offices also have Facebook pages including Hillsborough County. The Florida Fish and Wildlife commission stated that they made over 100 arrests through Facebook.

If you are looking for Legal advice, Tampa Criminal Defense Lawyer Lori D. Palmieri also has a presence on Facebook.

There’s an App for That- US Senators Request to Ban DUI Checkpoint Alert Applications

There is literally an app for everything these days; a food guide, calorie counter, music streamer… DUI checkpoint finder? Applications such as “Trapster”, “PhantomAlert” and “iRadar” are driving alert applications that notify drivers of speed traps, red light cameras, school zones and DUI checkpoints.

These apps are facing scrutiny from US Senators specifically for the DUI checkpoint feature. Senators Harry Reid, Charles E. Shumer, Frank R. Lautenberg and Tom Udall wrote a letter to Apple asking for the applications to be banned unless altered so that the DUI feature is removed.

In the article, Senators Ask Apple to Pull DUI Checkpoint Apps, we are introduced to the argument of whether or not the application helps or hinders the safety of the public. Captain Paul Starks of the Montgomery County (Md.) Police Department fears that the application will not stop people from drinking and driving but will only be used when people have been drinking and want to drive. He remarks,

“They’re only thinking of one consequence, and that’s being arrested. They’re not thinking of ending the lives of other motorists, pedestrians, other passengers in their cars or themselves.”

In the same article, Joe Scott, CEO and founder of PhantomAlert argues that they are doing the same thing police departments are doing to deter people from drinking and driving, the only difference is that the app puts awareness in real time. He stated that

“If they really understood what we are doing and aim to achieve, they would actually support us.”

So what it boils down to is whether or not this app is actually helping the safety of the public, or creating a tool that drunk drivers can use to dodge a DUI checkpoint and possible arrest. Could this be something that police officers and attorneys will have to start considering when investigating a DUI case?

The applications have not yet been removed but it will be interesting to see how Apple and other parties involved will respond.

Ratings and Reviews

Martindale-Hubbell AV Preeminent Rated

FL Bar Board Certified

Former Prosecutor