Constitution - Bill of Rights Category Archives — Page 4 of 12 — White Collar Criminal Defense Lawyer Blog Published by Miami, Florida White Collar Criminal Defense Attorney

Published on: March 20, 2019

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.

Published on: March 4, 2019

Civil right claim fails for a victim of a prosecutor’s defamatory statements

by The Swartz Law Firm

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.

Published on: March 1, 2019

Attorney should have asked for a mistrial given a judge’s repeated direction to the jury to continue deliberating

by The Swartz Law Firm

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.

Published on: February 14, 2019

A Fourth Amendment violation to repeatedly taser an arrested person who is not resisting

by The Swartz Law Firm

Bob Glasscox sued Officer David Moses and the City of Argo, Alabama under 42 U.S.C. 1983 for excessive force in violation of the Fourth Amendment for injuries he received when Officer Moses tased him four times in rapid succession. Glasscox, a type 1 diabetic, suffered a severe hypoglycemic episode while driving his pickup truck on Interstate 59 near Argo, Alabama. His condition caused him to begin driving erratically, and after other drivers reported his erratic driving Officer Moses was dispatched to the scene. The events that unfolded were captured on his body camera.

Published on: January 12, 2019

23-month negligent delay from indictment to arrest was not a Speedy Trial violation

by The Swartz Law Firm

David Lazaro Oliva’s appeal dealt mainly with a Speedy Trial issue. After an investigation into two large scale burglaries that took place in October and November of 2011, revealed the burglaries were committed by Oliva and Rafael Uranga, they were indicted in November 2013 with conspiracy to commit interstate transportation of stolen property. They were not arrested until October 2015, some twenty-three months later. They moved to dismiss their indictment based on a Sixth Amendment speedy trial violation. The United States Magistrate found that the delay between the indictment and the arrest was the result of the Government’s gross negligence but ultimately recommended that the motions be denied. The District Court agreed and both plead guilty. In their appeal they raised the Speedy Trial issue.

The case was investigated by Michael Donnelly, a Gwinnett County Police Department officer serving as an FBI Task Force Officer assigned as the sole investigator in the case. After the indictment Donnelly was responsible for locating and arresting the two but he mistakenly believed the United States Marshals Service had this responsibility. In January of 2014 after no arrests happened he asked another task force officer to communicate with the Marshals. That officer found out that the Marshals do not handle the arrests, but he failed to communicate this to Donnelly. Donnelly still failed to ask about the FBI procedure or whether the Marshals would begin locating the defendants. Donnelly still did not know it was his responsibility and failed to communicate with the U.S. Attorney’s office about the issue during the two year period.

Published on: December 26, 2018

Defendant changed his mind but about cooperating but it cost him his right to remain silent

by The Swartz Law Firm

Khaled Elbeblawy was convicted and sentenced in Miami federal court for conspiracy to commit health care fraud in violation of 18 U.S.C. 1349. His offense arose from his ownership and management of home health agencies that provided in-home medical nursing and other services to homebound patients which he used to defraud Medicare for millions of dollars. His fraud included billing Medicare for services that were never provided, paying doctors in case for referring patients, hiring patient recruiters and nurses for referrals. He would disguise check by inflating the rates paid for staffing services and described checks to patient recruiters as payments for consulting and other services.

After an investigation focused on Elbeblawy, he decided to cooperate with the government and helped investigators obtain evidence against his former conspirators. He signed a plea agreement and a written factual basis for the agreement. The agreement stated that the government would be free to use against him in any criminal proceedings any of the statement provided by him including the factual basis for the plea. After he signed the agreement, he changed his mind and refused to plead guilty and the government prosecuted him for the charges he was indicted. Prior to trial Elbeblawy filed a motion to suppress the signed factual basis for the plea agreement on the ground that he did not knowingly and voluntarily waive the Rule 11 and Rule 410 protections. The district court denied his motion.

Published on: December 19, 2018

Officer had no probable cause to make an arrest

by The Swartz Law Firm

In this case civil rights action Cozzi was arrested for robbing one pharmacy and for the attempted robbery of another. After he was released because the police found no evidence linking him to the crimes, he sued an officer of the City of Birmingham Alabama and several other law enforcement officers alleging a violation of his Fourth Amendment right to be free from an unlawful arrest pursuant to 42 U.S.C. 1983. The district court denied the officer’s summary judgment motion and the officer took this appeal arguing that he was entitled to qualified immunity on that claim because he had arguable probable cause to arrest Cozzi.

The only issue the court had to resolve was whether the officer is entitled to qualified immunity from Cozzi’s claim that the officer violated his Fourth Amendment right to be free from unlawful arrest. To invoke the qualified immunity doctrine the officer has the initial burden of showing he was within his discretionary authority. The officer met this burden without dispute. The burden then shifted to Cozzi to show that the officer violated his constitutional right and this right was clearly established at the time of the alleged violation.

For the arrest to be in compliance with the Fourth Amendment, the officer needed arguable probable cause to make the arrest. Whether a reasonable officer could have believed he had probable cause to arrest depends on the totality of the circumstances.

Published on: December 14, 2018

Probable cause to arrest means no civil rights violation

by The Swartz Law Firm

The lawsuit by Livingston Manners claiming federal civil rights violations by several police officers from the City of Hollywood for excessive force, malicious prosecution and a common law false arrest was ultimately rejected. This is how the facts unfolded.

At 3:00 in the morning Manners was sitting in his car on the side of a residential street in Hollywood Florida getting ready to drive to work when Officer Cannella drove by. The officer was patrolling the area in response to recent theft crimes in the area. As Cannella passed, Manners drove off. Believing that he saw Manners run a stop sign, Cannella made a u-turn and began following Manners about four or five blocks before activating his lights and siren. It was undisputed that Manners did not stop when he saw Cannella’s behind him with lights and siren. Manners explained that he was afraid, so he continued driving and until he reached a well-lit gas station where there was surveillance and there he pulled over.

Canella approached and informed Manners he was under arrest and ordered him to stay seated in the car. According to video taken from the surveillance cameras, a physical struggle took place when Cannella attempted to arrest Manners and place him into custody. Eventually other officers arrived while the struggle was underway, and Manners was tazed and eventually subdued.

Published on: December 6, 2018

Disciplinary sanctions and Title IX procedure by Valencia College found Constitutional

by The Swartz Law Firm

The issue disputed in Koeppel v. Valencia College was whether Valencia College violated Jeffrey Koeppel’s statutory or constitutional rights when it suspended him for his harassing conduct against another student. Koeppel’s suspension followed an investigation by the Valencia Dean of Students after a “Jane Roe” lodged a complaint about messages Koeppel had been sending her. The investigation showed that he sent Jane Roe dozens of messages making lewd reference to her body and send these unwanted massages over a period of days. He continued to contact her despite her repeated pleas that he stop contacting her and after the Dean issued an order that he not contact her.

After the Dean determined that Koeppel likely violated the school’s Code of Conduct for four types of conduct prohibited by the Code, a disciplinary hearing was held by the Student Conduct Committee. At a hearing held by the Committee they reviewed the evidence of the text messages and questioned Koeppel about his messages. It concluded he was responsible for the charged conduct and suspended him for attending the college for one year.

Published on: December 2, 2018

Representing a government witness on a pending appeal definitely a conflict of interest

by The Swartz Law Firm

Stephon Williams was convicted of federal charges of conspiracy to distribute cocaine and crack cocaine in violation of 21 U.S.C. 846 following a jury trial in a Georgia federal court. Williams was charged with conspiring with his codefendant Donterius Toombs who also went trial with Williams. The government called a witness named Bennet to testify at their trial.

At the time of this trial Bennet was appealing his drug conviction by challenging his sentence enhancement for an obstruction of justice for sending a letter to Toombs, Williams’ coconspirator, asking him to cooperate on Bennett’s in exchange for a substantial payment and to market a cooperation-for-hire scheme to inmates seeking sentence reductions. The attorney representing Williams at his trial was also representing Bennet on his sentence enhancement challenge in the Eleventh Circuit court of appeals.

In his testimony Bennet did not mention Williams by name but he supported the government’s case against both Williams and Toombs by directly describing and by corroborating other witnesses’ testimony concerning the drug distribution conspiracy alleged in the indictment. In his direct examination, Bennet made no mention of his letter to Mr. Toombs or how he had received and obstruction of justice enhancement at sentencing. Toombs’ counsel cross-examined Bennet but did not bring up the topic. Williams’ counsel asked no questions when it came to his turn on cross examination.