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Iowa City, IA man Levi Carter was arrested for DWI, Iowa’s version of Driving Under the Influence last Friday night after driving his car 55 in a 25 mile per hour zone and ultimately crashing. After contacting officers determined that Carter was impaired he was subjected a breath alcohol test where he registered initially a .467 on his first blow and on the second blow attempt the machine simply registered “HI” before the machine collapsed in its own drunken stupor from Carter’s chemical weapon breath. Ok, that actually didn’t happen but this Iowa guy did blow LITERALLY off the charts! Every State has set .08 as the legal limit where a Prosecutor enjoys a rebuttable presumption that the person he’s trying to convict is impaired, while Florida allows for no presumption if the blood alcohol level is above a .05 but below a .08 and a presumption of no impairment if the blood alcohol level is .05 or below. There is no language on what the effect of a breath test above .40 is. Call your congressman.

Given this scenario to prove this as a DUI in Florida the State must show that Carter drove or was in actual physical control of a vehicle and while doing so he had a blood alcohol level of .08 or above. From the news report he crashed his vehicle and had a passenger who represented to the police that they thought he was too impaired to drive. This witness is important as with a crash, an accident exception applies allowing a lay person to witness certain elements of a crime as a substitute for a policeman. Generally for a misdemeanor arrest an officer must witness all elements of a crime, with certain exceptions of course. The breath test result could satisfy the impairment portion of the allegation. Add those two pieces together and your DUI recipe could be complete.
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Heisman Trophy candidate Jameis Winston finds himself in both a National Title race and also subject to an allegation that he sexually assaulted a Florida State University student in December of 2012. Since this story broke it has been at the forefront of the college football world and has consumed the minds of many Florida State fans. With attention, rumors and allegations are bred, some conceivable, others absurd. The outcome will shake out how it may and at the end of the day, the truth must be found so justice is served. With what is known as of the time of writing this blog, there doesn’t seem to be enough evidence to make a filing decision. If that’s the case, it’s hard to imagine charges being filed.

Everyone that knows me, knows well that I am a Florida State Alum and a huge Florida State football fan. My Saturdays revolve around it, plain and simple. I love my Noles to a fault and I’m a cranky fan. I get made fun of for living and dying on every play and like the Chicago Bear superfans I have had numerous tiny heart attacks caused by my team. No doubt I’m at a baker’s dozen by now. That being said, before you start barking that this blog will be biased, even if Mr. Winston were a Gator or Hurricane, my opinion on this investigation would be the same. Considering the evidence known at the time of this blog (This is important folks. I’m writing based on what’s known at the time of posting this blog) it doesn’t seem to me there is a case against Mr. Winston for criminal sexual assault.

At the time of this blog there is nothing more than an allegation that Jameis Winston sexually assaulted a young woman in Tallahassee. The journey from allegation to proof beyond and to the exclusion of any and all reasonable doubt is long. State attorney Willie Meggs has said, and he’s correct, that there must be a “reasonable likelihood of conviction” to bring a criminal charge. In spite of the fact that Winston’s DNA was found on the property of the alleged victim, more is needed to show that a sexual battery occurred. Necessarily under FS 794.011(5), Florida’s sexual battery statute as it would apply to this case, there has to be some showing that there was no valid consent. As a general rule, proof of no consent is offered by showing that a rape kit was performed and that there is medical opinion of injury to the victim, amongst other items of evidence. If this exists it could be damning for Winston. His DNA, coupled with medical opinion that the alleged victim’s body was injured would be a mountain to overcome for the even the best criminal attorney. Conversely, if the victim chose not to seek medical attention or if a medical evaluation reflected no signs of injury, this would benefit Winston. If an eyewitness saw the sex act this would be relevant for either side, depending on the observations. Was there a sexual relationship between the parties before and after the alleged incident and what was the nature of that relationship? If the answer is yes, and that relationship continued after the alleged act, this fact would help Winston as it could be argued that no one who was actually assaulted would go back to the person that victimized him or her. Following with the idea of a relationship between the two, are there pictures of them together after the alleged incident? If so, this damages the State’s case.
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Happy Veteran’s Day to all that have served our great country. Those that are still serving, thank you too. In the United States we have the freedom to designate specific days to give thanks to those individuals that have made a real impact on the development and continued growth of our country. No other day is more necessary than Veteran’s Day. It’s really not enough though. One day a year to go out of our way to thank those that dodged bullets and lost their best friends in battle so that we could go to our favorite bar and watch football or eat at the restaurant of our choosing. Nothing is more disproportionate than that.

I have a friend who has been shot at in the most dangerous city in the world in Iraq and another who flies soldiers in and out of combat zones. My cousin is a former Army Ranger seeing active duty in the Middle East. Many of my generation’s grandfathers or fathers fought bravely in World War 2 or Vietnam. Because these guys did and do this, I can safely get in my Jeep and drive to the beach and enjoy the day. They don’t talk about it and they don’t expect to be thanked. Yet no one should be thanked more. Quite honestly this is hard for me to wrap my mind around. Not only have they risked their lives for our lives and freedoms, they continue to stand in line to do so. They do this all the while realizing that when they go, or when they went, they could be kissing their wife holding their baby for the last time.
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Tampa man, Darrell Strong was charged with discharging a firearm in public, aggravated assault with a firearm and burglary for the purpose of a battery after firing at another man in the parking lot of the Tampa Home Depot located on Dale Mabry Highway. According to police reports, Raymond Lindstrom of New Port Richey was leaving the parking lot of the Home Depot and drove too closely to Strong’s wife’s vehicle, making it difficult to pass safely. As Lindstrom and Strong’s wife passed, a verbal altercation occurred through each of their windows prompting the intervention by Darrell Strong. Darrell Strong and his friend John Christian confronted Lindstrom, who remained in his vehicle. An argument escalated and eventually a fight broke out as Lindstrom was still in the driver’s seat. Lindstrom ultimately drew his concealed firearm leading to Strong and Christian attempting to take it from him. Strong and Christian then ran to their vehicles to retrieve a firearm as Lindstrom attempted to leave the parking lot but had to drive back by the two men due to Lindstrom’s lane dead ending. As Lindstrom drove back by the two men, Strong fired two shots at Lindstrom. Police estimated approximately 12 people were between Strong and Lindstrom when the shots were fired.
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Certain selected residents of Orange County, FL are potential jurors for the First Degree Murder trial of accused Police Officer killer Dontae Morris. Morris is scheduled for trial in the murders of Tampa Police Officers Jeffrey Kocab and David Curtis after the officers pulled over a car Morris was in three years ago. At the time of Morris being pulled over he was wanted on a warrant out of Jacksonville for a worthless check. Upon his detainer he fired upon and killed Officers Kocab and Curtis. After shooting the officers Morris fled on foot and a manhunt ensued until he ultimately gave himself up at a local Tampa criminal attorney’s office. Due to the nature of the murder charge, Morris could face the death penalty if convicted should a jury ultimately elect to recommend death and the trial Judge oblige their wishes. For now, an Orange County jury will be selected to try the Hillsborough County case. A looming question on the mind of many is why pick a jury in a different jurisdiction?

Due to the subject matter of this trial leading to much media attention and despite the crime occurring in Hillsborough County, the jury will be selected in Orlando and ultimately sequestered in Tampa. Florida’s Constitution, under Article I, Section 16, guarantees that an individual accused of committing a crime shall receive an impartial trial in the county wherein the crime was allegedly committed. As support for this guarantee, Florida Rule of Criminal Procedure 3.240 allows as a safeguard, for the Defendant or the State Attorney’s Office to move for a change of venue. As a basis for this motion the moving party will allege that a fair and impartial trial can’t be had in the county where the crime was committed and as such the trial or at least the jury selection should be moved to another county in the hope that a pool of individuals less familiar with the facts can be found. Florida criminal statute 910.03 dictates that upon a court ordering a change of venue, priority must be given to any county that closely resembles the demographic composition of the county wherein the original venue would lie. Using the Morris case (see also the Casey Anthony case) as an example, the closest county offering the most purported safety in distance with the closes demographic makeup to Hillsborough is Orange County, likely because of the cities of Tampa and Orlando being somewhat similar demographically.
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//www.youtube.com/watch?v=_JphDdGV2TU
  A South Florida woman, or man, depending on how you classify it was sentenced to 366 days in a Florida Prison this month for injecting several individuals in the butt with a toxic mix of Fix-A-Flat and super glue. Ron Oneal Morris, born as a man but who now considers herself a woman, “helped” those in need of a bigger butt by conducting several procedures where a tube was inserted into the buttock of the patient allowing for Morris’ toxic concoction to be pumped in. In spite of every client seeking her services voluntarily and knowingly allowing her to perform her procedure, Morris was charged with and convicted of the criminal act of practicing healthcare without a license. In spite of a more serious sentence being possible, Morris’ criminal lawyer convinced prosecutors to offer the fairly lenient deal citing a lack of physical evidence and a failure of witnesses to come forward. No surprise there as I’m sure it’s a bit embarrassing to admit you’ve allowed some quack to inject you with a Molotov Cocktail of doom. Ironically, Morris isn’t the only person on planet earth to offer these services as Padge Victoria Windslowe was charged in the death of a young woman for her version of this type of injection in Philadelphia in 2012.

For this particular allegation, Morris was likely charged with the third degree felony version of this offense under Florida Statute 456.065(2)(d)(1). If one is charged with practicing healthcare without a license under this statutory subsection they will face a minimum fine of $1,000 and a minimum mandatory prison term of 1 year. In Morris’ case, under the statute she received the most lenient sentence available. In spite of the nice deal worked out by her Florida criminal lawyer, Morris’ troubles are far from being behind her as she faces Manslaughter charges in Broward County for the death of one of her “patients.” Shatarka Nuby was injected by Morris in 2007 and later died of “massive systemic silicone migration” while serving a sentence in a Tallahassee prison.
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The vast majority of the time if one is charged with a Federal crime they are very likely subject to a considerable amount of incarceration. In some situations it’s possible for a hard working Federal criminal attorney to try their client’s case and earn an acquittal. Unfortunately for a defendant, Federal criminal cases tend to be well investigated and by the time the individual is charged, the United States Attorney has a nearly airtight case with which to work. But what about the minor crime committed by one with a squeaky clean criminal history where the crime is seemingly victimless? State criminal courts have pretrial diversion but do our Federal courts? Surprisingly to some, the answer is yes. So what does it take to get into Federal Pretrial diversion?

As with many facets of a Federal criminal charge, the United States Attorney handling the case has a great amount of discretion as to whether to offer diversion. Should you be lucky enough to have a reasonable and compassionate US Attorney, you must still meet the criteria found within the United States Attorney Manual section 9-22.100. In order to qualify for Federal Pretrial Diversion the US Attorney must choose to divert you should you not: have two or more prior felonies, be a public official or former public official accused of an offense arising out of a violation of the public trust, accused of an offense related to national security or foreign affairs, be accused of an offense that under existing department guidelines should be diverted to the State criminal court system. Should you be lucky enough to get into diversion you will be there no longer than 18 months should you complete the program and will still be required to pay any restitution owed.
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As criminal attorneys if we’ve heard it once, we’ve heard it a million times, “the defendant spontaneously admitted to the crime and also told me who is responsible for John F. Kennedy’s assassination.” Ok, maybe not to that extent, but I can’t tell you how many times I’ve read police reports, be it a DUI allegation or a Federal Wire Fraud report, where there is language that my client made admissions. Obviously many people get scared when they’re arrested and sing like canaries, but what about those that may be a little more “experienced” with the system and would never utter a peep to a police officer? What about those instances where a person “spontaneously” told the officer during a traffic stop that they have 14 tons of cocaine stashed in their garage 40 miles away? How can we as attorneys, or a jury really know what happened or what was said between the officer and the defendant without hearing a recording of the conversation?

I recently tried a Federal drug case where a DEA agent recorded in his written report that my client made certain statements that could be viewed as admissions and he later testified as to the same. Despite working for a Federal law enforcement agency with more than enough resources to buy recording equipment, this conversation was not recorded. As an attorney, without the luxury of any audio or video recordings to review, all you can do is try to chip away at the Agent or Officer for not making an effort to record despite the means to do so and attempt to the point across that one who is investigating a case certainly has an interest in the outcome and therefor has some bias. Unfortunately, often a showing of bias from the standpoint of a law enforcement officer and the fact that he didn’t record the conversation isn’t enough to combat Big Badge’s testimony. This happens every day in Courtrooms all across the country and the only way to combat it is to attempt to cross examine the witness and hope that they are taking their oath seriously. Sometimes they do, sometimes they don’t. I’m not alleging that this agent wasn’t truthful in his testimony, however had the conversation been recorded my job would have been that much more difficult as it’s a hell of a lot harder to impeach a recorded conversation than a conversation that’s retold by a witness.
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A Boone, NC man has been arrested after his can’t stop, won’t stop policy for spreading the word of massage through uninvited back rubs blew up in his face. Julio Antonio Yanez, despite his self image of being a modern day Don Juan, has been charged in North Carolina with two counts of misdemeanor breaking and entering and two counts of assault on a female. As alleged, Yanez would enter the homes of unsuspecting women, crawl into their bed, and begin his rub down sessions. As could be expected, despite his rugged good looks, the victims were unwilling participants in his attempted night moves. Upon entering the beds of his victims it is reported that both victims immediately ordered him to cease his caress and leave the premises immediately. Despite their demands it is alleged the walking massager continued to stroke their arms and back and persisted in his demand to tenderize their muscles. As it stands currently there are at least three women who alleged Yanez attempted his tomfoolery on them, though charges have been filed based on only two of the incidents.

In my time as an attorney there have been cases that just make me sit back in my chair and wonder what the hell is wrong with people? My job title doesn’t allow me to not look for the weaknesses in a fact scenario and assess a situation considering both sides of the coin. However, if these allegations are true as alleged, this is one of those rock back, eye roller cases. I’ve mentioned in other blogs that criminal law is generally similar from State to State and in the Federal system. Of course there are nuances in Florida that a criminal attorney practicing in Florida would know, just as there are nuances in Tennessee that a criminal lawyer in Tennessee would know. That’s just the way it is. Yanez will be charged in North Carolina with misdemeanor counts. If this is all he’s charged with, he can sleep a little easier. Were he in Florida he would no doubt be charged with misdemeanor battery for his unwanted touching of his victims. Depending on the unknown facts of his case, he may also be charged with Burglary of an occupied dwelling under Florida Statute 810.02(2)(a) if the State could prove that he entered the dwelling with an intent at the time of entry to commit a criminal offense and that offense is an assault or battery. If burglary isn’t provable Yanez would be charged with trespass in a structure, a first degree misdemeanor.
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35 year old Haider Zafar, formerly of south Florida is currently residing in Federal custody after being indicted in the Southern District of Ohio for 118 counts of Wire Fraud, 13 counts of money laundering, and one count of filing a false federal income tax return. The meat and potatoes of Zafar’s indictment alleges that he made false representations that his uncle was a high ranking political figure in the Pakistani government, and that Zafar and members of his family knew of several pieces of land in Pakistan that the Pakistani government planned to purchase in order to build military facilities. The nature of Zafar’s alleged scandal was that he told potential investors that they could supply the funds and that Zafar could swoop in and purchase the land prior to the Pakistani government and ultimately sell the land to the government for a very large profit. He would then share the profit with the investors. Things got really interesting at Zafar’s detention hearing earlier this week when investment attorney Andrew Fine testified that Zafar had bilked former and current Miami Heat players out of approximately 8 million dollars in addition to the existent allegation. Specifically, Mr. Fine mentioned former University of Florida star Mike Miller, Rashard Lewis and guard James Jones as victims of Zafar’s alleged impropriety.

Haider Zafar is facing a typical allegation of white collar criminal conduct. As such, his potential sentence, should he ultimately enter a plea, would be driven primarily by the amount of money conned out of potential investors. As alleged thus far via indictment, Zafar is said to have scammed 10 million dollars out of a Washington DC business and if the allegations of his misgivings while living in Florida are true, he could have an additional 8 million dollars added via superseding indictment. Zafar will be facing up to 20 years in prison on his wife fraud counts and 10 years for his money laundering counts. The maximum prison term for his tax evasion allegations is only 3 years or 1 year respectively, depending upon the statute used. For purposes of example of how the Federal Sentencing Guidelines work for cases involving money, we’ll use the wire fraud guideline 2B1.1 as it could apply to Zafar. Because wire fraud has a maximum penalty of 20 years, the base offense level would be a 7. Next, in applying the specific characteristics of this alleged offense, we must attribute the monetary amount scammed. In this case, as it seems to stand currently, that number would be 8 million dollars. As such we must add 20 levels per Guideline 2B1.1(b)(K). Depending on the sophistication of Zafar’s scam, there could be an additional 2 level increase in total offense level under 2B1.1(b)(9)(C). As with any Federal case, should a plea ultimately be entered, the bulk of the work for a Federal criminal attorney is in a proper sentence calculation and the challenges that may accompany. For Zafar, based on the limited information we have, he could score out to 29 levels (87-188 months depending on criminal history category)
before any kind of acceptance of responsibility or other means of reducing his potential sentence. This number does not consider the Florida victims and could get higher should the US Attorney’s Office include them.
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