Articles Posted in Federal Trial Issues

Published on:

Isabel Grimon plead guilty to possessing 15 or more unauthorized access devices and aggravated identity theft after officers found 19 bland credit cards in her vehicle and a thumb drive containing 134 credit card numbers issued to other persons. The indictment charged her with knowing possession of unauthorized access devises and that “said conduct affected interstate commerce.” She went through the plea hearing with a factual proffer which included a stipulation that the government would have proven at trial that Grimon did knowingly and with intent to defraud possess 15 or more devices which are counterfeit and unauthorized access devices, said conduct affecting interstate commerce.”

In her appeal Grimon argues that the district court lacked subject matter jurisdiction over her offense because the factual proffer merely stipulated to the interstate commerce element of her access device offense and did not contain any underlying facts showing that her possession of counterfeit credit cards affected interstate commerce. She stressed that the cards were never used. The government argued that even if Grimon’s stipulation was insufficient factual basis for the interstate commerce element of her offense that did not deprive the district court of subject matter jurisdiction to accept her plea.

Continue reading

Published on:

In this appeal Anthony Spence was charged with knowing transportation of child pornography in violation of 18 U.S.C. 2252A(a)(1) and knowing possession of child pornography in violation of 18 U.S.C. 2252A(a)(5)(B). He was found guilty after trial. In calculating his federal sentencing guidelines range the probation officer recommended an increase for a number of factors. The factor at issue here was a two-level enhancement for distribution which Spence stated took place while he was in Jamaica. In this appeal he argues that his distribution of the videos while in Jamaica should not have affected his guidelines calculation. He argued that by including his out of country conduct in the calculation of his offense level the district court violated the principle that legislation of Congress should apply only within the United States unless a contrary intent appears. Spence was relying upon a canon of statutory construction known as the presumption against the application of congressional statutes to conduct occurring in the territory of a foreign sovereign. He argued that the distribution of videos occurring solely in Jamaica should not have been considered by the district court.

As an issue of first impression, the court of appeals saw the issue as whether the presumption against the extraterritorial application of congressional legislation should be extended to apply also to preclude a sentencing judge from considering extraterritorial conduct which would otherwise be properly considered as relevant conduct.

Continue reading

Published on:

In U.S. v. Johnson the Eleventh Circuit court of appeals reversed a panel decision which held that an officer conducted an unconstitutional search and seizure when he removed a round of ammunition from the defendant’s pocket after conducting a pat down of the defendant who was a burglary suspect. The en banc court decided that the seizure of the ammunition was a constitutional search under Terry v. Ohio. The facts show the Opa-Locka, Florida, Police Department received a 911 call about a potential burglary in progress at a multifamily duplex. Behind the duplex was a fence that separated the duplex from the adjacent property. The 911 caller described a black male wearing a white shirt trying to get through the window of a neighbor’s house.

Soon after officers arrived, the defendant was seen coming from the back of the complex through an alley. He fit the description of a black male wearing a white shirt. He was ordered to the ground and handcuffed and detained until they could figure things out. Because of the nature of the call and the high crime nature of the area, the officer conducted a pat down of Mr. Johnson for officer safety. The officer felt a nylon piece of material and then underneath it he felt a hard-like, oval-shaped object which led him to believe it was ammunition. He removed it thinking that there might be a weapon nearby or another person in the apartment that may come out with “something.” It was a black nylon pistol holster and one round of .380 caliber ammunition.

Continue reading

Published on:

A U.S. Marshals Service fugitive task force and counter gang unit sought to arrest Cooks at his home.   A member of the Bloods street gang, Cooks  was wanted for second degree assault by the Birmingham Police Department. While surveilling Cooks’s home, the officer saw a car arrive at the residence and the driver entered the home without any interest in speaking with the officers.   The officers made contact with two other occupants who told the officers the door had been barricaded and locked from the inside and they could not open it because they did not have a key. The officers started hearing drilling sounds coming from inside the house.  Soon after one of the occupants was able to exit briefly and before returning to the house she told officers that Cooks was armed.   Concluding that they were facing a potential hostage situation, the officers called the SWAT team.  A hostage negotiator made contact with an occupant who told the officer that the two occupants wanted to leave but couldn’t.  They also told the officer that Cooks was doing something in a hole in the floor.  When negotiations failed, the SWAT team broke into the house and removed the hostages.  One hostage told the officers that Cooks had put multiple guns in a hole in the floor.

After arresting Cooks, the officers did an initial 30 second sweep, followed by a three to four minute sweep.   They found a four by four hole covered by the plywood nailed down with screws.   When the deputies remove the plywood covering and entered the hole, they found a several pistols and long guns.   Only after the discovery of the guns did they obtain a search warrant to search the Cooks home.

Continue reading

Published on:

In 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.

Continue reading

Published on:

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.

Continue reading

Published on:

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.

Continue reading

Published on:

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.

Continue reading

Published on:

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.

Continue reading

Published on:

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.

Continue reading