Jacksonville Criminal Lawyer Blog

There has been a clear trend of fewer white collar crime cases being prosecuted in federal court over the last seven years under the Bush administration, according to an analysis done by the Transactional Records Access Clearinghouse (TRAC) which reviewed the records of thousands of federal criminal cases. TRAC also concludes that this trend will continue at least until 2009, when the new administration takes over.

Some of the statistics showing the decreasing number of white collar crimes pursued by federal prosecutors include: the prosecution of all federal white collar crimes is down 27% since 2000; there are about half the number of federal charges against organized crime suspects than there were in 2000; the prosecution of federal drug cases is down 20% from ten years ago; and the prosecution of federal weapons cases is down 21% since 2004. According to the study, only federal immigration crimes have seen an increase in federal prosecutions since 2000 (a 127% increase). Based on changes in staffing and budgeting of funds, the study concluded that this trend is likely to continue.

The TRAC study is consistent with an article written in August of last year on www.Seattlepi.com which discussed the number of white collar crimes which had not been prosecuted by the federal government. That article noted that approximately 2400 federal agents were transferred from various criminal divisions to handle counter-terrorism matters after 9/11. They have not since been replaced. After a six month investigation, Seattle PI concluded that the number of criminal cases investigated by the FBI declined by 34% from 2000 to 2005 and white collar crime cases referred from the FBI to federal prosecutors went from about 10,000 in 2000 to 3,500 in 2005.

So what happens to white collar cases when federal prosecutors do not have the time, resources or inclination to prosecute them? It depends on the case and the jurisdiction, but there are a few possibilities. For some cases, as the above statistics suggest, the answer is nothing. If the federal government does not prosecute the case, no one will. In some cases, state or local prosecutors can prosecute the case. However, local prosecutors may not necessarily have the resources and personnel to properly prosecute a complex white collar cases that often involve victims, defendants and/or other elements across the country. And, of course, in some cases white collar crimes can be prosecuted at the state or local level to a similar degree as on the federal level, although this is not common. When white collar crimes are prosecuted on the state or local level, sentences and parole considerations are often more lenient as the decision makers may be more accustomed to dealing with more violent or common crimes.

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Posted In: Federal Crimes , White Collar Crime

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Lou Pearlman was the creator of two of the most famous young bands (The Backstreet Boys and N'Sync), but he was recently sentenced to 25 years in prison after being convicted of the federal crimes conspiracy, money laundering and making false statements, according to the Orlando Sentinel. Pearlman defrauded more than 1,000 people and banks out of approximately $500 million. The prison sentenced ordered by the U.S. District Court Judge in Orlando, Florida was agreed to by federal prosecutors. Pearlman would normally serve 85% of his prison sentence, however the judge did give Pearlman an opportunity to reduce his sentence by one month for every million dollars he returns to the victims of his crimes.

The federal crimes Pearlman committed were part of what is commonly called a Ponzi scheme. A Ponzi scheme occurs when someone, presumably a good communicator and seemingly savvy businessperson or investor, makes claims that he/she can make excessively high financial returns for potential investors. The Ponzi schemer is typically someone who appears to have a lot of money giving the impression that he/she can do for others what he/she has already done for him/herself. Once a few victims are attracted to the scheme and pay their initial investments, the offender typically pays part of the promised profits to some of the initial investors. This serves the purpose of gaining trust and also generates some third party advertising.

However, the problem, and the crime, is that there are no high yield investments. The initial money that was returned to investors 1, 2 and 3 as profits are really the initial "investment money" that was paid to the Ponzi schemer by investors, or victims, 4, 5 and 6. So, going forward, initial victims are paid periodically from the funds of subsequent victims. Ponzi schemes while effective initially, depending on the skill of the person running it, are generally destined to fail. The obvious flaw is that victims are going to eventually want their money back plus the promised profits. As the Ponzi schemer runs out of new investors, or victims, he/she also runs out of money to pay his investors since there were never any real investments or legitimate source of profits. Ultimately, the victims will figure out the scheme and talk to other victims as well as the police. At that point, the Ponzi scheme collapses and often, unfortunately, the victims find that the money they thought they invested is gone.

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Posted In: Federal Crimes , White Collar Crime

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In Florida, the crime of vehicular homicide occurs when a driver kills another person by driving a motor vehicle in a reckless manner such that another person is likely to die or be seriously injured. One possible defense to the crime of vehicular homicide, particularly in the drag racing context, is whether the cause of death could be attributed to someone other than the defendant, for instance, the victim or another person involved in the accident.

Consider a drag race that occurred in Florida a few years ago that resulted in a conviction for vehicular homicide. The defendant was drag racing with another vehicle occupied by a driver and a passenger. Both cars sped towards a part of the road that narrowed. The other vehicle tried to speed up and pass the defendant, but the defendant also sped up and would not let the other car pass. As the two cars raced towards the narrow portion of the road, the other car lost control and the passenger died. The defendant, who managed to safely stop his car without crashing, was charged with felony vehicular homicide and racing on a highway.

The criminal defense attorney for the defendant argued that the defendant was not guilty of vehicular homicide because his actions did not cause the crash or the death. The criminal defense lawyer argued that the other driver caused the death of his passenger by speeding up and then losing control of his car. Alternatively, the criminal defense lawyer argued that the victim herself caused her death by voluntarily participating in the drag race.

The court disagreed, and the defendant's conviction for vehicular homicide was upheld. The Florida law says that a victim's own conduct can be used as a defense to vehicular homicide but only where the victim's conduct by itself led to his or her death. An example given was where a passenger inexplicably grabbed the steering wheel and caused the car to crash during a drag race which resulted in the passenger's death. However, in this case, the victim may have contributed to her death by agreeing to participate in the drag race, but the driving of the defendant was also a contributing factor.

Regarding the other driver's conduct, his conduct was also not the sole cause of the death. The court found that the defendant contributed to the crash by failing to slow his car to let the other car pass as they approached the narrow part of the road. This created a dangerous situation which contributed to the accident and the death. When the other driver responded by driving faster, that was a foreseeable response during a drag race that did not affect the defendant's guilt for the crime.

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Posted In: Traffic Infractions

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Jacksonville, Duval County, Florida criminal judges will be considering a new proposal that would make it easier for people who have recently been arrested for certain crimes in Jacksonville to bail out of jail. Bail/bond is the money or other collateral that needs to be paid to get a person out of jail after an arrest and to secure that person's presence at subsequent court dates. Under the current system in Duval County, people who have been arrested for crimes such as DUI (driving under the influence of alcohol or drugs aka drunk driving), domestic battery, petit theft, offering prostitution and all felonies must see a judge (within 24 hours) to have their bail amount set. For other lesser crimes such as first and second degree misdemeanors, those arrested can be directly released by officers at the Duval County Jail for bond amounts of $2,500 (1st degree misdemeanor) or $1,500 (2nd degree misdemeanor).

The new Duval County proposal to expedite the bond process for people arrested for various crimes would enlarge the number of people arrested who could be released from the Duval County Jail without having to wait to see a judge. Under the proposal, people arrested for most misdemeanors, less serious felonies ($1,000 bond for people arrested for third degree felonies) and municipal ordinance violations would be eligible for release from jail with no bond or a small bond amount. Of course, certain factors related to where a person resides and a person's criminal record might make a person ineligible for expedited release from jail at a lower bond amount.

Supporters of the new Duval County Jail proposal note that this new process would alleviate the Duval County Jail overcrowding and reduce the costs associated with that problem. Others have expressed concern that the new system would make the bail process, which is supposed to be based on the particular facts and circumstances of each case, too systematic and may remove too much discretion from the judges.

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Posted In: Criminal Procedure

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A Jacksonville, Florida woman was arrested for, among other crimes, keeping a loaded handgun in the center console of a car that her daughter had driven to Lee High School , according to an article on www.News4Jax.com. The mother was arrested on charges of child abuse and failure to store a firearm in a safe manner.

Under Florida criminal law, what are the requirements for safely storing a firearm? According to the safe storage of firearms Florida statute, it is unlawful for a person to leave a loaded gun in a place under his/her control when he/she knows or should know that a minor is likely to obtain possession of the gun without the proper permission and supervision. The Florida law requires that the gun be kept in a securely locked container or similarly secure location (unless it is lawfully kept on the person's body).

In Florida, violation of this crime is a second degree misdemeanor if a minor improperly gains access to the firearm and either possesses it or exhibits it in public or in a threatening manner. Leaving a gun in an unsecured place where a minor can access it can be a felony crime in the third degree in Florida if, with few exceptions, a minor obtains the gun and uses it to inflict injury or death upon the minor him/herself or another person.

it is unclear from the article if these criminal laws apply to the woman recently arrested in Jacksonville, as it is not indicated whether the minor actually obtained possession of, or exhibited, the gun.

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Posted In: Gun Crimes

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Criminal activity relating to stealing financial and identification information from the computer systems of individuals and businesses is increasing as the internet becomes more popular and people become more technologically advanced. Network security companies sell encryption software that presumably allows individuals and companies to protect the financial and identification information they keep on their computers and networks. However, a group of researchers from Princeton University recently exposed a basic flaw that would allow someone to steal encrypted information that is stored on computers. The method the researchers used was as simple as shooting cold air onto the computer memory chip with a can of dust remover which can be purchased at any hardware store. When the computer memory chip is hit with the cold air, the data on the chip is frozen for a period of time allowing the person to retrieve the information on the memory chip.

What does this mean for businesses in Jacksonville and elsewhere in Florida? The Florida data breach law requires companies whose computer security systems have been breached to notify any individual whose personal information has been materially compromised. In other words, any company that maintains personal information about an individual must notify that individual if the company's computer system has been compromised such that the data breach likely has resulted, or likely will result, in harm to the individual. For more information about the Florida data breach law and notification requirements, please visit the discussion of this subject on our website.

There is an exception to the notification requirement in the Florida data breach law. If the personal information kept by the company was encrypted, the company does not have to notify any individuals of the data breach. However, as this study suggests, although encrypting information may remove a company from the notification requirement of the law, it does not necessarily mean that data is safe and a data breach is still possible which can subject a company to serious financial ramifications and horrible publicity.

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Posted In: White Collar Crime

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No, according to a recent Florida criminal case. The Florida carrying a concealed weapon law provides that it is a third degree felony for a person to carry a concealed firearm on or about his person without a license. However, there is an exception under Florida law which allows a person 18 years of age or older to carry a concealed firearm or other weapon without a license if that person is traveling in a private conveyance (such as a motor vehicle) and the weapon is securely encased or otherwise not readily accessible for immediate use. This exception does not allow a person to carry a concealed firearm or other weapon on his or her person. This is called the private conveyance exception. In other words, an adult can carry a concealed handgun or other weapon without a license in a vehicle if the gun is kept in some secured case or is otherwise not easily available for immediate use. An example might be to keep a handgun in a case in the truck of a vehicle.

In the recent Florida criminal case, a person was arrested and charged with carrying a concealed weapon after police saw that he carried a .40 caliber handgun in a closed zipper pack around his waist while driving a motorcycle. The defendant did take the gun out in a threatening manner while driving the motorcycle.

The criminal defense lawyer argued that the defendant was not guilty of the crime of carrying a concealed weapon because the private conveyance exception applied. The court agreed that the motorcycle was a private conveyance and the gun was "securely encased" in the closed zipper pack. However, because the defendant kept the gun on his person, the exception did not apply and the defendant's conviction for felony carrying a concealed weapon was upheld. Of course, it did not help that the defendant pulled the gun out while he was driving his motorcycle which indicated that the gun was readily accessible for immediate use. The defendant would have been better off keeping the gun in a closed compartment in or on the motorcycle.

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Posted In: Gun Crimes

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A proposed federal law would require anyone arrested for a federal crime to provide a DNA sample to federal law enforcement officials to be stored in a nationwide DNA database called CODIS, according to a recent article. The DNA samples would be swabbed from the inside of a person's cheek. The Department of Justice expects that this new law will increase the number of people whose DNA samples have been collected after an arrest by 1.2 million each year.

In support of the federal law, law enforcement officials say the DNA samples of people arrested will help law enforcement officials catch criminals and also prevent people from committing crimes. Critics of the law worry about whether the DNA will be used for purposes other than law enforcement, although federal officials confirmed that the privacy laws will apply to the DNA that is collected.

Currently, only people convicted of crimes have their DNA collected and stored in the database. According to the article, people who have been arrested for a federal crime and have their DNA taken but are not subsequently convicted of the crime can contact the United States Department of Justice and have their DNA samples destroyed. Whether people arrested for a federal crime will be informed of that fact or how they would otherwise know they can do this is not clear.

In Florida, police routinely take DNA from people who have been convicted of a felony crime. Florida law also requires a person to surrender to a DNA sample voluntarily if they have been arrested for a misdemeanor or felony crime. The Florida Legislature is currently considering proposed laws similar to this one that would expand the Florida database of DNA samples to include everyone arrested for a felony and other select misdemeanors.

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Posted In: Federal Crimes

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Criminal defense lawyers often file what are called Motions to Suppress to try and keep out evidence that the prosecution is attempting to use against a defendant in a criminal case when the criminal defense attorney believes the police were not justified in stopping the defendant and/or seizing the evidence. The Fourth Amendment protects people from unreasonable searches and seizures and can be used to prevent the prosecution from using evidence against a defendant in a criminal case if the court finds that a search or seizure was unlawful.

A recent criminal case out of Jacksonville, (Duval County) Florida does a good job of explaining the difference among the three categories of encounters with police. The first level of police encounter is a consensual encounter that involves minimal police contact and where the other person is free to comply with police or leave the encounter at any time. The second level of police encounter is often referred to as an investigatory stop where a police officer can detain a person temporarily if the police officer has a reasonable suspicion that the person has committed, is committing or is about to commit a crime. The police officer must be able to point to specific facts that are the basis for this reasonable suspicion of criminal activity. The third level of police encounter is an actual arrest where the person is detained and removed from the scene. This level of police encounter requires the higher standard of probable cause that a person has committed, is committing or is about to commit a crime.

In the recent case, the Jacksonville Sheriff's Office (JSO) officers were called to investigate a burglary of a vehicle. When the Jacksonville Sheriff's Office officers arrived, one of them heard a possible witness say the suspect was a white male who ran into the woods. No other description was given. The Jacksonville Sheriff's Office officers searched the woods and found a CD player that may have been taken in the burglary and then some distance away found the defendant lying on the ground. The defendant was handcuffed, placed in a patrol car and driven back to the scene of the crime where he was identified by a witness.

Clearly, this encounter was a third level encounter since the defendant was handcuffed and moved from the location where the JSO officers found him. The court found that the officers had a reasonable suspicion to briefly detain the defendant and investigate the burglary further, but with only a vague, general description of the suspect, the JSO officers did not have probable cause to execute a full arrest of the suspect. As a result of the finding that the arrest was not legal, the subsequent identification of the defendant was thrown out and could not be used against the defendant in court.

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Posted In: Drug Crimes , Search and Seizure

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Fifteen Jacksonville, Florida area (Duval, Clay and Nassau County) parents were arrested recently pursuant to the Florida habitual truancy law, according to www.News4Jax.com. The Florida law provides that all kids age 6 to 16 must go to school. A kid is habitually truant, or absent from school, if he or she has fifteen unexcused absences in ninety days. In this case, Jacksonville area police officers indicated that each of the children of the parents arrested had at least twenty unexcused absences from school this year.

Duval County, Clay County and Nassau County police arrested the parents on charges of failing to comply with the compulsory child attendance laws and contributing to the delinquency of the children, which are misdemeanor crimes in Florida.

Jacksonville area police officers and school officials cite the serious nature and effects of truancy in support of the truancy crime laws and the arrests. One study by the National Center for Mental Health Promotion and Youth Violence Prevention indicated that, in addition to the negative academic consequences, truancy is also a risk factor for other problems like drug and alcohol abuse, gang activity, serious criminal behavior and chronic unemployment. Literature from the Office of Juvenile Justice and Delinquency Prevention reports that kids who are habitually truant from school are at greater risk as adults for poor physical and mental health, poverty, incarceration and raising children who have the same problems.

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Posted In: Misdemeanor Crimes

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A Jacksonville (Duval County), Florida woman was recently arrested on charges of DUI (driving under the influence) Manslaughter after causing a car accident that killed her young son. According to the article on www.News4jax.com, the Florida Highway Patrol crash report indicated that Angela Harper lost control of her vehicle, crossed over two lanes of traffic and crashed into the guardrail. Ms. Harper was wearing her seat belt, but the five passengers were not and were all thrown from the vehicle.

After the accident, a blood alcohol test was performed on Ms. Harper. The results showed that her blood alcohol level was 0.11, which is above the legal limit.

In Florida, the crime of DUI Manslaughter is committed when a person operates a vehicle under the influence of alcohol or certain drugs and has his/her normal faculties impaired or has a blood or breath alcohol level of 0.08 or more and as a result causes the death of another. DUI Manslaughter under these circumstances is normally punishable as a second degree felony.

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Posted In: DUI

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Identity theft (aka financial identity theft) is an increasingly common crime in Florida that can cost a lot of time, money and effort for the victims to resolve. According to a recent study, approximately 8.4 million people were victims of identity theft crimes in the United States in 2006.

To address the increase in identity theft crimes, particularly those committed using computers, Congress is currently considering a federal law called the Identity Theft Enforcement and Restitution Act which, if it passes, would allow victims of identity theft crimes to seek restitution from offenders not just for the amount that was stolen from them, if any, but for the victim's expenses related to fixing all of the problems that were caused by the identity theft. When the crime of identity theft occurs, a victim can spend a significant amount of time canceling old, and obtaining new, credit card, cell phone and other accounts, dealing with credit agencies to assess and fix the damage to their credit rating and dealing with accounts that were opened and purchases made in their name.

The federal law would also expand the crime of cyber-extortion to include threatening to take or release information found on a computer. Currently, the federal law of cyber-extortion only deals with threats to shut down or damage a business or government computer.

The law would make it a felony federal crime to use spyware or a keylogger to damage ten or more computers even if the cost of the damage was less than $5,000. Currently, cyber attacks that result in less than $5,000 worth of damages are classified as misdemeanors.

Finally, the law would allow for federal jurisdiction where a person stole personal identification information from a computer even if the theft was done in the same state as the offender as opposed to requiring the computer from which the information was stolen to be in another state or country. This means the federal prosecutors would be authorized to prosecute a case even where the defendant and the computer were in the same state.

This proposed federal law was passed by the Senate and awaits a vote in the House of Representatives.

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Posted In: Federal Crimes

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In Jacksonville, Florida and throughout Florida the last few days, the news channels have extensively reported the damaging effects of wildfires that were allegedly caused by arson. Today, in Palm Bay, Florida, which is about two and a half hours south of Jacksonville, Florida, an arrest was made of a person suspected of committing the crime of arson and causing the wildfires by reportedly throwing a bottle containing an accelerant (a substance that speeds up the fire and/or makes the fire more intense) into the woods. As of today, the fires have burned approximately 15 square miles, including 20 homes, and caused approximately $9.6 million in damages.

In Florida, the crime of arson is committed when a person willfully and unlawfully, or while committing any felony, damages a dwelling or other structure by fire or explosion. The crime of arson is either a first degree felony or a second degree felony depending on whether or not the resulting fire damages a dwelling or another structure where a person is normally present or reasonably believed to be present. If the present case turns out to be arson as suspected, this crime would likely fall into the first degree felony category and carry the potential for significant jail time and restitution and/or fines.

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Posted In: Arson

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Fines for traffic violations may be issued as a result of video cameras at some of the more dangerous intersections in Jacksonville, Duval County, Florida. The Jacksonville City Council recently approved a plan to put video cameras at ten or more intersections in Jacksonville to catch drivers who run red lights, record their license plate numbers and issue a civil infraction (ranging from $125 to $300) to the owner of the vehicle that ran the red light. There are approximately three hundred cities in the United States that use cameras at intersections to catch drivers running red lights.

According to Florida law, local governments are not allowed to use pictures from cameras installed at intersections to issue traffic tickets. However, the few Florida cities that have such cameras and the cities like Jacksonville that have plans to install the cameras intend to circumvent the law by issuing civil infractions, or violations, instead of tickets. The end result is the same- a fine for the owner of the vehicle that runs the red light.

There are several criticisms of the red light cameras. While there is evidence that these red light cameras reduce the number of drivers who run red lights to some degree and slightly reduce the number of certain types of auto accidents, there is also evidence that the cameras actually increase rear end accidents. According to an article from MSNBC.com, there are numerous reports that suggest that the red light cameras cause drivers to slam on their brakes as they approach an intersection to avoid a fine which has resulted in an increase in the number of rear end accidents at these intersections with the cameras. The Federal Highway Administration's first study of intersections with red light cameras found that there have been 14.9% more crashes at these intersections than what would have been expected at intersections without red light cameras.

Another unexpected criticism that has caused several cities to take the red light cameras down is that they worked too well in preventing drivers from running red lights. These cities expected the red light cameras to generate enough revenue to pay for the cameras and also provide much needed additional revenue for the city budgets. However, in Dallas for example, the drivers figured out where the red light cameras were and stopped running those lights. That's certainly good from a safety standpoint, but the revenue lost from fewer traffic fines did not just deprive the city of anticipated revenue, in some cases it meant that the red light cameras did not even pay for themselves. As a result, Dallas, along with some other cities, have taken the red light cameras down where they have worked too well.

It remains to be seen when and where Jacksonville will install these cameras and if they will not work very well, will work too well or will be just right.

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Posted In: Traffic Infractions

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DUI (driving under the influence) arrests in Jacksonville, Duval County, Florida often start when a police officer pulls a driver over for some traffic violation. However, the failure of a driver to wear his or her seat belt cannot be the reason for pulling a driver over. Of course, a police officer can give a driver a ticket for not wearing a seat belt after pulling the driver over for another reason such as speeding or another moving traffic violation, but a police officer is not allowed to pull a driver over just because that driver is not wearing a seat belt.

In the most recent Florida legislative session, a proposed law that would make the failure to wear a seat belt a primary offense (in other words, a traffic violation that would permit a police officer to pull a driver over on that basis alone) did not pass. Of course, injury accident statistics overwhelmingly support the conclusion that wearing a seat belt is a good idea, and failing to wear a seat belt can still subject a driver to a fine. However, as of now, it is not a legal basis for pulling a driver over.

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Posted In: Search and Seizure , Traffic Infractions

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