South Florida Criminal Defense Lawyer Blog

Most Americans shy away from Latin or Greek sounding words and one at the top of the list to find out about is Habeas Corpus.  In Latin, Habeas Corpus means that “you should have the body” or “produce the body.”  But in our legal system, Habeas Corpus means that anyone arrested cannot be held indefinitely without a judge reviewing the government’s proof.  When Habeas Corpus is “suspended,” it suspends a court’s power to force the government to make a showing of why an arrest is justified.



It works like this: Once the government “suspends” Habeas Corpus, anyone arrested is kept in jail until a government official decides to either file a case, file a charge, or allow the detainee any access to an impartial hearing in court.  It is one of those fundamental constitutional rights that are the underpinning of due process, equal protection and fundamental fairness. It gives individuals the right and the power to have a court review any arrest and decide if there is sufficient evidence to bind that person over for a trial.

It exists as a fundamental and very elemental writ and once filed, the arresting agency (Federal or State) must immediately “produce the body”  (Habeas Corpus) before a judge who will ask the government why that person is in jail and when and what charges the prosecutor believes he/she can sustain.  Without access to a court and a fair and impartial hearing, anyone arrested remains in custody for…well maybe for weeks, months, or (as we see in the Guantanamo detainees) years.

Historically, Habeas Corpus was first inspired as a fundamental right in the Magna Carta in 1215, the “Great Charter” issued at Runnymede on the banks of the Thames River.  The Magna Carta was an official document issued by the British King John after a revolt by the British nobility in which British kings guaranteed they would respect feudal rights and privileges, uphold the nation’s laws, and uphold the freedom of the church. In the U.S., the right of Habeas Corpus was inserted in the Article 1, Section 9 of the U.S. Constitution and only during the early years of the American Civil War was Habeas Corpus suspended.  The reason was that Maryland was about to join the Confederacy and Washington D.C., the nations capital, was so full of spies and agents for the Confederacy that Abraham Lincoln asked the U.S. Congress to suspend Habeas Corpus so they could deal with what was a real emergency.

What is pending today is the real possibility that ISIS (ISIL) may commit some atrocity on U.S. soil, similar to the murderous attack that killed 129 people in Paris.  At that moment it is very likely that the Federal government will ask the Congress to act (as the constitution permits) to suspend Habeas Corpus for the duration of an emergency.  Suspension of Habeas Corpus is an easy governmental response to a terrorist event.  We are seeing something very similar in France as it has declared a state of emergency and authorized the police to investigate, arrest and detain suspects and then, at a pace and time convenient to the French government, begin the process of proving guilt.  The French do not have a formal process in its criminal laws, but we do, and that is the writ of Habeas Corpus.  As time goes forward the subject of Habeas Corpus is something we can all expect to be very topical and current.

If terrorists commit an atrocity on U.S. soil and the federal government wants to act expeditiously to arrest and detain suspects and wants to be free of the responsibility to respond to an independent judiciary, you will hear our federal government ask to suspend Habeas Corpus.  Without it, no one arrested has the ability to ask the government to simply make a showing of what proof it intends to use at a trial.  It is only a burden if the government wants to act without controls or any obligation to prove up a charge.   If we suspend Habeas Corpus, it is almost a certainty that police agencies will make large sweeping arrests without having to answer to a judge who will ask: “Why?”



On October 22nd, 2015, President Obama met with the Marshall Project, as well as a new group called the Law Enforcement Leaders to Reduce Crime and Incarceration. The new group is made up of 130 police department heads and law enforcement officials, including William J. Bratton of the New York City Police Department, Charlie Beck of the Los Angeles California Police Department, and the Chief of Police of Chicago, Garry F. McCarthy.

Prior to their launch event on October 21st, the group issued a Statement of Principles,  concerning the incarceration rates  in the United States.   In the Statement they wrote: “…too many people are behind bars that don’t belong there.”   The group has encouraged a  public debate on the policy considerations of incarceration. The group encouraged the modification of legislation to reduce mandatory minimum prison sentences.

Congressional Democrats and Republicans also pressed to reverse the public policy of the last 40 years, which substituted heavy prison sentences for a public policy dealing with narcotics addiction and mental health issues.  Reflecting on the fact that narcotics addiction is a driving force in incarceration rates, the group has spoken out for consideration of alternatives to prison sentences for substance abuse.  Prosecutors have unfettered discretion in framing charges for violations of law.

The group pledged to confront the prosecutorial arm of the government to consider the wisdom overcharging addicts who are arrested for property crimes.  Superintendent McCarthy, as chair of the group said, “When we are arresting people for low level offenses such as narcotics I’m not sure we are achieving what we set out to do. The system of criminal justice is not supporting what the community wants. It’s very obvious what needs to be done, and we feel the obligation as police chief to do this.”

In its Statement of Principles, the Law Enforcement Leaders group included a comprehensive catalog of studies showing more than one third of the prison population came into the system with significant mental health or substance abuse problems.  The Law Enforcement Leaders group said they would lobby the United States Congress and state legislatures to reclassify nonviolent felonies as misdemeanors and move to reduce a number of petty offenses from criminal statutes throughout the nation.These changes will allow public officials to refocus resources to deal with community issues in addressing criminal defendants.

In a local note, the Law Enforcement Leaders group pointed to the Miami’s Eleventh Judicial Criminal Mental Health Project program as an excellent example of public policy modifications that address the broader spectrum of mental health and substance abuse issues presented  by those arrested for property and nonviolent crimes in Florida.  The program has allowed the city to close one of its jail facilities to reflect a reduction in nonviolent arrest resolving with jail terms.  The ongoing program helps train police agencies and prosecutors in Florida to deal with the issues of substance abuse and mental health concurrent with arrests for nonviolent and property crimes in the Miami area and been an encouraging example to other states.

FBI Director James Comey has made press comments that the “Ferguson Effect” has led to an increase in violent crime.  His comment was admidetly based on his empirical view of changes in homicide rates in select cities.  So the issue is: ”Are police shirking duty for fear of being prosecuted?” and the answer is….another answer comes from President Obama in a gathering of police chiefs in Chicago.

300px-FBISealThe issue is emotionally charged and has been featured in articles in the New York Times and the Washington Post.  Are, in fact, as FBI Director Comey saidthe average police officer is afraid to get out their patrol cars because of fears their actions will be caught on video?  FBI Director Comey said, the “age of viral videos” has altered the policy of local police.  FBI Comey told the press he has little evidence in support of his “theory” but he has “a strong sense that it is true.”

We do know that viral videos of police contact with civilians has been featured in the news.  Paul Butler, a professor at Georgetown University and Washington, D.C., who was a prosecutor before teaching, has said, “A lot of white people are truly shocked by what these videos depict.” He went on to comment that it comes as little surprise to African-Americans, who believe they are targeted for abuse by police.  The most recent video from a South Carolina High School shows a white school police officer taking hold of an African-American student by the neck, abruptly moving her backward off her school chair at her desk, and then throwing her across the classroom floor.

The New York Times has assembled videos of police contact, which show the videos of the following high profile viral videos on police contact:

  • The South Carolina High School incident on October 26, 2015;
  • James Blake incident on September 9, 2015;
  • Christian Taylor incident on August 7, 2015 in Arlington, Texas;
  • Samuel Dubose incident on July 19, 2015 at the University of Cincinnati campus;
  • Sandra Bland incident on July 10, 2015. Sandra Bland later died in police custody in Prairie View, Texas;
  • The June 5, 2015 incident in McKinney, Texas, when a white police officer pointed a gun at a bikini clad African-American girl and shoved her face into the ground;.
  • Freddie Gray incident in Baltimore on April 12, 2015.  Freddie Gray later died after being placed in a choke hold by police.
  • The shooting of Walter L. Scott on April 4, 2015 in North Charleston, South Carolina;
  • Antonio Zambrano-Montes shot on February 10, 2015 shot in Pasco, Washington;
  • The shooting of 12 year old Tamir Rice on November 22, 2014 in Cleveland, Ohio;
  • The Michael Brown killing on the streets on Ferguson, Missouri, on August 9, 2014;
  • The July 17, 2014 death of Eric Garner in Staten Island, New York; and
  • Ricardo Diaz-Zeferino shooting in Gardena, California on June 2, 2013,

My observation of the wisdom if FBI Director Comey making a public statement on the issue of police retrenchment in the face of the Directors citing of higher homicide rates in some cities is irresponsible.   The Director best serves the public by being a source of rational and provable information rather than comments that may prove to be baseless or unsubstantiated.

This past week, the Senate Bill S. 2123, titled, “The Sentencing Reform and Corrections Act of 2015,” was approved by the Senate Judiciary Committee, in a vote of 15-5. The bill lowers minimum mandatory sentences of certain drug offenses and certain armed offenses, while establishing new minimum mandatory sentences for certain domestic violence offenses and could grant early release for thousands of Federal prisoners.



It has been a generation since the United States Congress has reviewed and revised Federal Sentencing.  Prior to 1984, Federal judges had unbridled and unfettered discretion in formulating appropriate sentences.  Under the broad outline of the Federal criminal code, each judge had the power and authority to make sentencing determinations.  It was, and has been since the earliest years of our nation a judicial determination, only subject to Due Process and Equal Protection constitutional review.  Judge’s judged and judges decided: They were given the authority and power to balance the serious nature or character of an offense with public safety and the individual convicted of a Federal crime.

It was in 1984 that the United States Congress began what has been over thirty years of sentencing under the Federal Sentencing Guidelines.  The basic underlying incarcerative theory became a politicians’ view of what is appropriate and what is not in fashioning sentences to Federal prison.  The Sentencing Guidelines was intended to create balance, fairness and consistency.  The Sentencing Guidelines were intended to eliminate racial discrimination and disparity.  The Sentencing Guidelines were to bring to a modern court system scientific, reasoned and rational sentencing reform.  It has done very little to effect the intent of the Congress.  What was “sold” to the people of the United States as a rational sentencing system has done very little to reduce crime, improve recidivism rates, eliminate racially imbalanced sentences nor effect good public policy.  It was, is and always has been a political tool for politicians to seek and obtain re-election through fear of criminality and without provable result or outcome.

Public policy based on good social science to effect a better sentencing format has failed to effect any of its primary goals.  It has been over thirty years of a bizarre wizard’s brew of rules promulgated under the penumbra of the Sentencing Guidelines.  It has spawned a cottage industry of consultants and seminars for lawyers to divine sentencing memorandums to besieged judges burdened and not benefited from the Sentencing  Guidelines Commission. I have been among the voices in the wilderness calling for changes.  There are Federal judges who after mastering the Sentencing Guidelines as a genie, who seek daily in Federal courts to assist defense lawyers in fashioning rational results in sentencing.

The Senate Bill S. 2123, emanating from the U.S. Senate Judiciary Committee, presents the hope and promise of making right what has been a wrong perpetrated against and unknowing public who was sold a system that has failed.   I urge all my readers to send emails to their Senators and Congressmen/women to vote YES when the SENTENCING REFORM AND CORRECTIONS ACT moves from Committee to legislative review.


prison groupWith over 200,000 inmates in the Federal prison system and a Congress poised to make changes in the harsh sentencing rules for drug offenses, clemency is under consideration by the office of the President. At the time of this posting the criteria for consideration of clemency can cover about 2,000 federal inmates. Civil rights groups and prison reform organizations are skeptical of how many will be granted clemency.The office of the President explains that the process has become bogged down and expects only 200 will be considered as eligible during this round of inmates being reviewed.

The president of the National Association of Criminal Defense Lawyers issued a statement that this is the beginning of the end of mass incarceration for drug offenses. Others are doubtful as the politics of prosecution and confusion over criminality and drug addiction stifle debate and freeze legislatures.   Across the United States a debate is in process, but the process is frozen. President Obama’s clemency program is a case in point and illustrates that the reality of reform and the process of clemency are at odds. Families Against Mandatory Minimums is a major force in the movement to reconsider the long sentences meted out for drug offenses, and announced it welcomes the clemency program of president Obama.

For more information contact the Office of the President of the United States and the U.S. Department of Justice.  The clemency process starts with a formal request for clemency. Filing instructions and information are available on the U.S. Department of Justice website. Clemency considerations include the following factors:

  • The applicant must be a low-level non-violent offender.
  • The applicant must not have a criminal history of any significance
  • The applicant must have been sentenced to a prison term that is longer than the current guidelines ranges.
  • The applicant must have served at least ten years in federal detention and have demonstrated good conduct while incarcerated.
  • Further, the applicant must have no history of violent behavior while in federal detention.

Most of those under consideration in the President ‘s clemency initiative are serving sentences for crack cocaine possession and delivery who were sentenced under the “old” crack cocaine sentencing guidelines, the one that was modified and reduced by the sentencing commission last year. There is a “push” politically that has gained momentum and is supported by both conservative republicans in the House and Senate as well as the Federal criminal bar (attorneys) and both conservative and liberal “think tanks.”

mortgage fraudUnited States District Courts were, until recent years, required to strictly and mechanically follow the sentencing guidelines propounded by the U. S. Sentencing Commission. With the changes of the past eight years, the Courts have been largely permitted to vary or depart from the guidelines. Nonetheless, the U.S. Sentencing Commission still maintains a powerful influence on what Judges can and cannot do in deciding what is a guideline or “legal” sentence under federal criminal law.

From time to time we have seen substantial changes in the published sentencing guidelines, and 2015 is a banner year for change. Changes approved by the U.S. Sentencing Commission outlined in this report will be effective on November 1, 2015, unless the Congress acts to overrule, repeal or modify the new guidelines.

This blog entry deals only with the new guidelines affecting white collar crimes. These include money laundering, fraud, currency violations, mortgage fraud and securities law violations. The Commission explained in its proposed changes that it wants to more fairly balance harm suffered by victims and the intent and actual participation of the defendants, as well as updating the realities of the monetary ranges which were last set in 1988.  The criticism which prompted these changes comes from criminal lawyers and judges, as well as prosecutors in the Justice Department and the U.S. Attorneys Office that the current (soon to change) guidelines have produced overly severe sentences in some cases and inappropriately light sentences in others. Additional changes, particularly in mortgage fraud cases, emphasize the actual knowledge and acts of defendants and cuts the link that equates a conspirator with no actual knowledge, no intent and no participation in the actual acts. This comes up often when one of the conspirators who by his/her actions assists or provides the opportunity for mortgage fraud but does not or is not involved in the structuring and savaging of victims.

This came up in a recent federal mortgage fraud case I was defending in the Miami Federal court. My client, who had an ownership interest in a title company and had the duty to supervise employees was sentenced under the same guidelines as the bad actors. Imagine if you owned a bank or title company or mortgage brokerage firm and while you were hospitalized and removed from the day to day operations, your employees concocted and executed acts of fraud and deceit, hid them from you and changed records such that even with a serious due diligent effort to uncover the fraud you could not have found the bad acts of your employees. In this case the fraud only became known when defaults resulted in foreclosures and then the banks saw that they had lent monies far in excess of the values fraudulently assigned to the properties and that the owners were never financially qualified from the get-go.

The changes in the guidelines now state that the defendant be proven by the prosecutor to have actual knowledge and proven intent to cause the losses before their sentence can be increased by the actual dollar amounts. Nothing changes a defendant’s criminal liability as a conspirator.  You have the duty to supervise and the duty to know of the fraud: the proposed guidelines instructions do not release you from guilt as a conspirator, but your sentence is not tied to the actual amount of the loss. And the losses are also subject to changes in computational and analytical approach. This makes more sense when you actually read the proposed changes.

Harry Truman never completed law school but he did attend for two years. He lived a few miles from Kansas City, which recently became renown in the history of lawyers and lawyer jokes. It all began on April 14th when legal secretary Monica Hastings opened her boss’s office and was greeted by a



Turkey…an “involuntary intruder” as she reported it to her boss, lawyer Jeffrey Tonkin. She reported to a local news station “I opened up the door and I saw a little turkey tail go past his desk”. The “intruder” Turkey left a hole in Tonkin’s window when it was, by current police suspicion, propelled into the office through a glass window by “unknown and unseen forces.” This challenges the popular belief that Turkeys’ can’t fly. But perhaps the bird needed legal representation and wanted to talk turkey with the lawyer and entered after hours for a discount. Now displaying his practice as “ a Turkey At Law” local lawyers are trying to capitalize on a new area of constitutional law protecting Turkey’s travel and air rights. More to come in future postings…..

Source: ABA Journal

Real Housewives of Beverly Hills star Kim Richards was arrested in California in the Beverly Hills Hotel and charged with trespassing, public intoxication and resisting an officer and battery on an officer.  Early morning Thursday, April 16, 2015 Kim Richards was arrested on the grounds of the Beverly Hills Hotel. Reportedly, the staff contacted the Beverly Hills Police reporting a “possible fight” and “an intoxicated female causing a disturbance” in an on site restaurant, most likely the posh and very famous Polo Lounge.



According to the police report, Kim Richards, the Real Housewives of Beverly Hills starlet was in the process of being escorted off the property of the hotel when she asked for a detour to use a bathroom before she left. Once in the loo, she refused to leave and the police entered the bathroom to take her into custody. The police report continues: “Ms Richards was displaying symptoms of alcohol intoxication including slurred speech and belligerent insolent behavior cursing at the offices and passively resisting arrest.” Once off to jail it was reported she kicked an officer in the leg. Kim Richards was released at 10:30 the next morning and issued a notice to appear citation requiring her to appear before the Los Angeles County Superior Court on May 10th, 2015.

Co-Star, Dr. Paul Nassif, reportedly told that Kim Richard’s behavior was the result of a combination of medications that Ms. Richard’s had been properly prescribed, but had the effect of causing her to appear intoxicated, and, reportedly, alcohol was not involved. Below is some tweet activity from cast mates on the very popular real life show:

Lisa Rinna: “I was sad to hear about Kim’s incident and I wish her and her family the best.”

Lisa Vanderpump: “U can’t help somebody til they want to help themselves,I know for sure that the sisters will always support each other when the time comes.”

Brandi Glanville: “Real friends are their in the good times, the bad times &especially the worst times. I am blessed with real friends & am a real friend myself.”

Eileen Davis: “I feel badly for Kim Richards and her family my thoughts and prayers are with them during this difficult time.”

According to, Kim’s sister Kyle is still refusing to speak to her following their “RHOBH” reunion blowup.

April 6, 2015 marks the closing arguments in the Boston Bomber case being played out in Federal court in Boston. The Federal criminal trial of Mr. Dzhokhar Tsarnaev, the sole survivor of the pair that is accused of planning, preparing and detonating an anti-personnel destructive device at the finish line at the 2013 Boston Marathon, is at its finish this week.

Survivors and family members heard the Assistant United States Attorney, Mr. Chkravarty, make his closing arguments. His remarks described a deliberate and well planned attack in retaliation for the perceived harm the two men endured as a result of the U.S. led military actions in Iraq and Afghanistan. The second man, Tamerlan Tsarnaev was killed during his escape.

Some of the Assistant United State’s Attorneys closing remarks are as follows: “The evidence here speaks for itself,” he said Immediately after that he showed to the jury several still images and a video of the victims before the bomb was detonated. He went on to say the the Tsarnaev brothers knowingly and intentionally targeted innocent civilians including children. Mr. Chakravarty walked over to Mr. Tsarnaev and said while pointing at him, “He thought his values were more important than anyone else’s.”

Most commentators and observers of the trial agree that the jury can and will convict. There are a total of thirty counts in the Federal criminal indictment. The total number of victims killed is three and 264 people were wounded. The lead prosecutor, Assistant United States Attorney William Weinreb went to great lengths to emphasize that the two brothers were equal partners in their crimes and the law holds them equally liable. The defense attorneys during the trial argued that the surviving brother, Dzhokhar, was duped and brought into the conspiracy by submitting to his brother’s overwhelming willpower. The prosecutor’s case took over fifteen days of testimony from ninety-two witnesses. The prosecutors case opened with images of the gruesome death of an eight year old child who was watching the finish line of the Boston marathon with his parents. The defense called four witnesses and took a little more than five hours. Defense attorney Clark emphasized in her opening and closing that the dead brother was the driving force and the planner and initiator of all the acts, from the planning to the construction of the bomb.

Today in Alaska, an amendment permitting recreational marijuana use goes into effect. In November, 2014, the citizens of Alaska in a statewide vote to amend the Alaska constitution voted 53% for and 47% against this amendment. The vote, a majority, prevailed and the new amendment became fundamental law for Alaska. This makes Alaska the third state in the United States to legalize recreational use of marijuana.  The new status of marijuana makes it legal for people over the age of twenty-one to consume personal use amounts of cannabis. It is still illegal to sell marijuana and illegal to purchase marijuana.  Read the full text of the amendment here.

Prior to the Alaska amendment, Washington and Colorado were the only states permitting recreational use of marijuana. Medical use is different and requires a bona fide medical need before it can be dispensed. Alaska now must implement the amendment and deal with the issues of public consumption, intoxication, and removing criminal sanctions for possession and use of marijuana.

The initiative in Alaska left many issues to be resolved. For example, the initiative and amendment does not permit smoking marijuana in public. Smoking in public does not deal with the consumption by other means in public, such as drinking fluids containing marijuana and cannabis extracts. Nor does it deal with eating consumables containing cannabis.  The City of Anchorage, Alaska, has an ordinance punishable by a fine of one hundred dollars if cannabis is smoked in public, but no definition of what the word public means. Reportedly, police in Anchorage are ready to issue citations, but the officers have not been instructed on what constitutes a violation of the city ordinance. Alaskan lawmakers have to define the scope of permitted consumption and any criminal violations which involve the abuse of the right to consume marijuana. The State board regulating alcohol has been delegated authority to regulate but the empowering statute under administrative law is open to interpretation and challenge, and so most of these issues will be resolved in proposed legislation and in criminal courts.

A larger question remains as to federal criminal law and their enforcement in states such as Colorado, Washington and now Alaska. Federal criminal law clearly identifies cannabis as a controlled substance, and federal laws regulate all controlled substances.  The possession, sale and transportation of marijuana is a crime under federal law. States cannot overrule federal laws and the conflict creates very real problems. For example, can a resident of Alaska purchase recreational marijuana using a credit card without exposing the credit card company to criminal charges?  If one writes a check, and thereby uses interstate commerce banking channels, is the bank subject to criminal prosecution for processing a check? If one mails marijuana within Alaska, or uses a commercial shipper such as FedEx, does that expose the carrier to arrest and prosecution under federal law? The answer is clearly YES. The question is whether or not the U.S. Attorney will prosecute under federal law, and that is a policy and political question for the federal government to resolve.