Several women have accused entertainer Bill Cosby of rape.  The  victims who have come forward with rape charges allege criminal  sex acts that were in past years.   Florida’s statutes of limitations  rules set a framework for what acts are time-barred and those that are not.   What rules of law would apply if Bill Cosby were charged and arrested for sexual battery in Florida?

Source: Wikipedia.org

Sexual offense categories and sentences,  vary with the ages of those involved.   Florida’s sexual battery crimes have different levels of culpability, which depend not only on the age of the victim, but the age of the perpetrator. Florida enhances penalties for sexual batteries by those in positions of trust such as parents and teachers.  In Bill Cosby’s situation the lapse of time between the date of the act and the involvement of prosecutorial agencies would quite likely bar a prosecution in Florida.  Sexual Battery is a subject in the news because of its social and political implications: none of this is missed in the Bill  Cosby matter.  What has been reported as a delay in bringing the allegations forward is also being reported as the very human delay between a violation and the victimization of an individual and a plea for help.

At the time of the posting of this blog, none of the accusers allege that the sexual batteries (rapes) were committed in Florida. Each state has its own set of laws concerning statute of limitations and rape. Depending on which state seeks to arrest and prosecute Bill Cosby, their individual state laws would govern the prosecution. Statues of limitations do not “repose” or end prosecutions when the accused fled the jurisdiction of the courts and hid from detection. The statute of limitations would also be tolled if the facts of the case could not have been discovered by the State due to efforts by the perpetrator to hide or obscure the detection of relevant facts.

Bill Cosby’s accusers have received great and widespread public support in their attempts to bring Bill Cosby before a criminal court for prosecution. Depending on the individual facts of each case and relevant State laws, prosecutors will explore and decide on where and if to bring criminal charges of rape against Bill Cosby. Since some of the accusations go back a significant numbers of years, some of them are from acts alleged to have occurred twenty-five years or more in the past, an issue may be whether prosecutors can proceed on the current laws, or must prosecute under the laws as they existed at the time of the alleged sex acts. This gets into the area of constitutional laws as some modifications that have been made by legislatures to sex crimes involve constitutional rights and other modifications have no constitutional implications.  It will be for local prosecutors in the State’s in which the allegations arose to decide to bring criminal charges.

A recent New York Times article highlights 1,000 cases in which entrapment  may see new life in courtrooms and legislatures throughout the United States.  Entrapment laws go back to the 1930’s when the U.S. Supreme Court first put constitutional rights in play to restrain what the Justices called “outrageous government conduct.”  Entrapment is when someone neither inclined nor seeking to commit a crime, is presented the opportunity by a government agent and is induced or persuaded into the enterprise with no prior inclination.

Now that you have the bones of the law on entrapment let’s look in on what your Government is doing.  Here are the facts…you decide if it’s entrapment or not:

Three hardened criminal types, all with extensive criminal histories involving guns, narcotics and violence, are sitting around in their crib, talking dirty and doing the bad boy thang.  An FBI agent posing as a drug courier goes to them with a proposal….. He tells this den of evil-doers that his main supplier has a big load of cocaine coming in, gives them the location.  He promises it is at least a half million dollars in street value cocaine. He tells them there may be some guns, but not enough that these three can’t handle. The FBI agent tells them its easy pickings and he’ll help. Our gang starts to get their arsenal together, buys some plastic garbage bags and stays: the bags are for the cocaine and the stays are to tie the hands of the drug lord’s retinue.   Then, with dreams of easy money dancing in their heads and never having left their rooms, a SWAT team breaks into their lair and arrests them on charges of conspiracy to distribute more than five kilograms of cocaine, armed trafficking and conspiracy. Those charges get them into ten-year minimum incarceration guidelines ranges and maximum life in prison for armed trafficking. What’s your decision here? Are the cases solid, can you convict, or will some judge throw the case out as entrapment?

Let’s go to the formula…

Were they inclined to commit the armed trafficking crime, or just waiting around for an opportunity to continue their bad boy ways? Were they seeking or looking for the opportunity or did a government agent bring it to them? Were there inducements made by the FBI agent to entice them to commit the crime? Does the government action offend the community’s sense of fair play and fair dealing? Does this rise to outrageous governmental conduct or is it solid law enforcement? If the three were not career criminals but three bored college students would it make any difference to you? Should it?

A Los Angeles judge dismissed two defendants in the above fact scenario and held one for trial. A Second Judge in Los Angeles dismissed similar charges. Then the government took the dismissals to a court of appeal and argued that the guns were real, the defendant’s criminal histories were real and the high stakes cocaine and money allurements were merely there to get their attention, not create a new crime. The agents who approached our little gang knew nothing about them other than they were men with extensive criminal histories living in poor neighborhoods. Is this something that “steers too close to tyranny” (as the court that dismissed the case wrote) or acceptable law enforcement methods of clearing neighborhoods of bad actors? Everyone gets to vote, but the only vote that counts is the guy in the black robe.

Rarely imposed since the 1940’s, quarantines are both: 1) Creatures of law, subject to constitutional muster and 2) Public health policy; based on the best current state of medical science: its understanding of the process by which infection works in its biological host, and the methods of transmission of communicable disease organisms.

The issue has been in the news because Ebola, emanating from Western Africa, may be communicated by infected persons traveling to the United States. Ebola as a disease does not have the virulence and infection rates of other viruses…but the next communicable disease may. SARS came, but was tamped down, the next disease may be more difficult to control or may spread faster than current control standards can effectively restrain transmission.

Source: www.businessweek.com

Source: www.businessweek.com

 

Lawrence Gostin has been doing good work in assembling the law on the question of law and quarantine. Teaching at Georgetown University, he has reviewed what Governor Christi did in New Jersey. The legal questions in any analysis are: 1) Rules of class designation; and, 2) Fairness in individual risk assessment. The law, as it stands, first addresses whether the designated members of the class, subject to quarantine,  comply with Due Process standards of reasonableness. Secondly, the law requires that those members of the class have adequate access to the courts to determine if their individual facts, their “individualized risk,” is afforded judicial review.

We are speaking to the constitutional issues of Due Process and Equal Protection under the law. The legal criticism of New Jersey’s  and Maine’s rules (as they were initially propounded), are the States’ rules were over inclusive and do not have a process for individual assessment of the actual risk of infection transmission from the persons in the class. Nurse Kaci Hickox, initially tented outside a New Jersey hospital, then went to Maine,  and subsequently permitted to live in her home, brought what may be the first of a wave of legal challenges to the quarantine programs as they are currently structured. Ms. Hickox, age 33, was a volunteer nurse working with Doctors Without Borders for five weeks in western Africa. She was detained at Newark Airport under federal quarantine, then, in effect; She came under New Jersey’s recently enacted quarantine rules before going up to Maine.

A constitutional challenge can and will be asserted to two aspects of effecting quarantine. First, the statute must meet constitutional muster: Due Process and Equal Protection. Then, the administration of the program, once structured by the enabling statute, must be effected by an agency. Agencies are created to carryout legislative  programs and are subject to the rules applying to administrative law. Ask: is the agency following the statute? Ask: is agency policy authorized? Ask: are agency rules compliant with Due Process? The landmark case of Gibbons v. Ogden is a good start for more comprehensive understandings of how judges approach quarantine challenges.

Federal laws state that jurisdiction arises from Article I, Section 10 of the U.S. Constitution under which the federal government effects collection of taxes and duties on imports by right of the constitution empowerment granted to the federal government to inspect items in commerce between the U.S. and foreign states. This has been extended to tariffs and taxes and quarantine. The push back comes from the reasoning in Printz v. New York, which limits the federal government’s power to commandeer (either by physical force or statute) local and state government officials to carry out federal law. Fasten your seat belts, its going to be a rough ride.

On Friday November 7, 2014, the United States Supreme Court announced that it would “consider” a new major legal challenge to the Affordable Health Care Act.  This happened three days after voters in the United States voted in the “mid-term” election on November 4, 2014. Mid-Term because it is in the middle of the term of the President of the United States.  The balloting was for members of the United States Congress: the House of Representatives and the U.S. Senate.  The election results were regarded as a resounding victory for the Republican Party.   The Republicans gained voting control of the House of Representatives and the Senate.

supreme ct

The forced coincidence is not likely an indication of the Justice’s willingness to rule on the Affordable Health Care Act, but to political pundits it resounds as such.  For those who want to believe that the Justices are over anxious to gut the Affordable Health Care Act, there other unfortunate facts.  On the top of the list is the fact that there no split in decisions coming up from the Federal Courts. 

The Supreme Court, as the final arbiter of the meaning of law, is constitutionally empowered to rule when there are conflicts in lower courts or constitutional issues of great importance.  Depending on how you want to see it: either the Supreme Court feels empowered or obligated to follow the politics of Republican Party stalwarts, or, it has been unfairly placed in the light of that accusation.  You be the judge.  But the Court has agreed to hear a case about how the Health Care Act is provided funding from a tax on medical devices.  The case they selected comes from the U.S. Court of Appeals for the 4th Circuit.  The Supreme Court Justices agreed to reconsider that ruling, which again looks like the judges are political operatives emboldened to do the bidding of Tea Party Republicans.

The aspect of the law that the Court has agreed to review gives them an opportunity to reverse their findings that permit the law to function.  The ruling to be reviewed concerns the Act’s system of subsidizing policies required by the law.  Subsidies are granted to Americans whose income is low.  The subsidies are not grants of free insurance, but lower premiums to those required to pay for their own policies.  More than five millions Americans are currently able to take subsidies to lower their actual out of pocket costs for  health insurance.   Those who qualify for a subsidy have their premiums costs reduced by as much as 76%, dropping the average monthly premium for those who need subsidies from $346 per month to $82 per month.   Any ruling eliminating the subsidies would constitute a major blow to the act.  If the Supreme Court reverses its previous ruling on these issues it would invalidate subsidies in thirty-six states.

Two governors, Governor Christie in New Jersey and Governor Cuomo in New York, both announced quarantine rules and were undercut by President Obama.  The legal issue is whether a president can overrule a state governor on an issue such as quarantine.  Ebola, the viral infection that has killed 4,941 people (as of November 1, 2014) in Western Africa is on the minds of U.S. citizens.

Over the past weeks, the top stories have been about Ebola deaths, like the one of Mr. Thomas Duncan (who arrived in the US with Ebola and died in an American hospital), and Governor Cuomo of New York and Governor Christie of New Jersey.   Now, alarmingly, the news is about a Doctors Without Boarders physician from New York City who is in a New York hospital after riding on the ‘A’ train in the New York City Subway system.

A recent NBC poll finds that 71% of Americans want to quarantine anyone who has contact with a population of Ebola victims and the State vs. Federal conflict is at the top of the news. The science, at this moment, indicates that Ebola can be caught only if the victim has fever and symptoms, otherwise the infection is not transmitted.

Kaci Hickox, Ted Wilbur

But what is the law on a State taking action, of which the Federal government does not approve. The first rule is the Preemption Rule, which is founded on the Supremacy Clause of the U.S. Constitution. Preemption starts with this: If the Federal government has a law, then the States cannot come in and overrule with a different set of laws. The legal response is that the States have the power to regulate health rules and laws within their jurisdictions. Back at ya: With the Health and Welfare Clause (aka the General Welfare Clause) which empowers the Federal government to act in the area of regulation of such matters.   Then we hear from the Tenth Amendment known as the State’s Rights Amendment. The Tenth Amendment empowers States to act when the Feds have not, which loops us back to the Preemption Rule under constitutional law.

Now the response is that when the Federal government does rule, as it seeks to in this instance with fewer restraints, the States can enter and make laws as long as they do not retreat from the Federal mandate. Think of voting rights and search and seizure laws. The U.S. Supreme Court has set the bar for what is a reasonable search and seizure, but many States have interpretations that grant greater protections: that can be acceptable under the Preemption Rules.

Then there is the politics of public perception and opinion. The 2014 mid-term elections are forecast to be a Republican win because of the public’s anger at a democratic administration that, on this issue, seems to be out of sync with 71% of Americans.  Now, if a legal challenge is brought to the U.S. Supreme Court, the Judges can pass on a ruling by finding that this is a political issue, not a legal question, and crawl behind the screen of judicial restraint and respect for a political issue that is not a legal issue.

It all comes down to asking the question in terms of rules of constitutional law. States Rights issue, or maybe it’s a Health and Welfare issue, or can we frame the legal issue under the Commerce Clause which gives the Federal government vast powers to regulate interstate commerce. Consider this: Is the spread of an infectious disease from one state to another something that has an effect on interstate commerce?  Yes. But if litigants frame this as a preemption matter…..or maybe it’s not a preemption issue because Governor Cuomo just expanded the Federal rules on what is a proper quarantine period.

The conclusion here goes to both the strength and the weakness of our form of government and the rule of law. Lawyers learn in law school that the likely winner in any legal conflict is the one who gets to frame the issue and thereby select the rules that a court will apply. Remember the old legal adage: A good lawyer knows the answers to questions, a great lawyer knows the right question to ask.

This past Wednesday, October 22, 2014, four former Blackwater contractors were convicted in the infamous 2o007 killings in Baghdad, by a federal jury.

In 2007, at the height of the United States incursion in Iraq, seventeen Iraqi civilians were killed and eighteen wounded in a busy traffic circle in Bagdhad. Employees of Blackwater Corp, a private security company, did the killings and non-fatal shootings. Blackwater was then, and remains today, a military contractor providing services to United States Armed Forces.

Source: www.dailymail.co.uk

Source: www.dailymail.co.uk

The widely reported case brought into focus the fact that the U.S. was using private companies to provide security forces and military services in conjunction with members of the United States military. The allegations then were, and the convictions confirm, that the killings in Nusoor Square were in violation of the rules of engagement and the rules of war.

The attorneys for the convicted contractors have told both the Court and the press that the convictions will be appealed. The case was brought by the United States Justice Department and in the charging documents the Justice Department alleged that the privateers committed murder, manslaughter, and several firearms offenses.

The facts as alleged in the criminal complaint were as follows: On September 16, 2007 nineteen Blackwater employees (called “contractors”) were providing security services to a convoy. The contractors were informed that a car bomb was detonated in Baghdad in a location that was near or part of the team’s assignment. They were escorting and protecting some United States officials. The team, disregarding orders from a senior Blackwater employee (who was in effect in command of the operation) changed the route to the Green Zone. They established a blockade obstructing traffic in busy Nusoor Square, which is next to the U.S. Green Zone. Seven members of the security team from Blackwater fired at vehicles and civilians in the traffic circle. They killed and injured unarmed Iraqi civilians. Among those killed was a medical doctor, a car salesman, an Iraqi soldier, a taxi driver and others who were there in the traffic circle. Blackwater said the convoy was under attack. At the trial witnesses told the jury that was untrue and that the contractors fired first and without provocation.

The case was dismissed in 2008 when a judge found that the government prosecutors withheld evidence that would have exonerated the defendants and ordered a new trial. The Congress of the United States held hearings on the allegations and the hearings were widely covered by the press in the United States and around the world. At the trial, there was evidence that the convoy came under attack and testimony that the contractors and testimony that the Blackwater contractors fired first and without provocation.

Here are the names of the defendants and the charges and convictions:

– Paul Slough, 35, of Keller, Texas: Convicted of thirteen counts of voluntary manslaughter, and 17 counts of attempted manslaughter and one firearms offense.

-Evan Liberty, 32, of Rochester, New Hampshire: eight counts of voluntary manslaughter, 12 counts of attempted manslaughter and one firearms offense.

-Dustin Heard, 33, of Maryville, Tennessee: six counts of voluntary manslaughter, 11 counts of attempted manslaughter and one firearms offense.

-Nicholas Slatten, 30, of Sparta, Tennessee: guilty of first-degree murder.

Congressional Republicans have been vocal in demanding the United States impose travel bans from African nations where Ebola infection rates are high. Travel bans have a long history of being of dubious value, and a look at travel bans imposed on HIV victims is informative.

ebola

The United States government has previously imposed travel bans to control HIV infection rates. Travel bans were imposed and required waivers for the following categories: Spouses of US citizens with HIV, unmarried sons or daughters of US citizens with HIV, minor unmarried adopted children of US citizens with HIV, parents, persons eligible to self-petition under the Violence Against Women act, and refugees seeking humanitarian exceptions. The ban was reportedly ignored to a significant extent, but many persons (without any of the waivers) were removed, deported or denied entry by U.S. Immigration authorities. In 2010, the ban was lifted, but Homeland Security in the U.S. is considering it as a framework if political pressure persist in restricting entry from infected African nations.

Any legal ban would have to provide for greater travel freedom for US citizens. The United States Constitution, the “Privileges and Immunities Clause” recognizes freedom of travel as a constitution right. These rights, however, do not apply to citizens of foreign nations. It is unclear, but generally understood, that non-US citizens with legal status in the United States are afforded such travel rights. Historically there are some exceptions: look to the “Mann Act” for restrictions on travel between states of unmarried male/female companions. Cases such as Ward v. Maryland (79 US 418) are the basis for the constitutionality of such restrictions on travel. Balancing those rights is the “health and Welfare” clause of the constitution.

The current state of the law permits the Director of the United States Center for Disease Control to impose travel bans between states (nations) to control and contain “viral hemorrhagic fevers” Ebola is such a disease. The last legal challenge to quarantine laws came in 1902 when the US Supreme Court upheld the power of individual states to impose quarantines even if the quarantine effected interstate commerce. If the US government fails to act then individual States, exercising their police powers, can effectively control or ban the travel of individuals who do not comply with State reporting laws requiring proof of disease-free status. Regardless of the arguments that travel restrictions do not work, the increasing public pressure for action is expected to put State’s rights activists in the front of moves for states, such as Texas and Florida, to impose State restrictions in the absence of federal action.

The Office of the United States Attorney for the Southern District of Florida opened a Grand Jury indictment on October 10, 2014 and made a new arrest in the Rothstein scam. A now “former” regional vice president of TD Bank, Mr. Frank Spinosa, age 53, was charged in Federal Court with wire fraud and conspiracy. Released on $250,000 bond with an electronic monitor, his attorney Samuel Rabin, negotiated terms of release for his client at the initial appearance hearing held before the US Federal Magistrate in Fort Lauderdale.

rothsteinArraignment has been set for October 24, 2014. The investigation was known to Mr. Spinosa for several years, his attorney stated. The Grand Jury Indictment was unsealed on Friday morning, October 10, 2014, and comes within days of the deadline set by law for arrests in this ongoing case. The indictment of Mr. Spinosa contains charges that can result in a maximum penalty of well over twenty years in federal prison and fines of over $250,000.00. Because each of the five counts can resolve with a twenty year sentence, Mr. Spinosa is facing a possible one hundred years in prison. Scott Rothstein was sentenced to fifty years and is currently serving his sentence at an unknown federal detention facility.

The charges against Mr. Spinosa allege that Spinosa committed fraud by giving a “false sense of security” to potential and actual investors. The indictment goes on to state that as a result of the alleged inducements, hundreds of millions of dollars were invested in Rothstein’s investment scam. Spinosa was fired by TD Bank in October 2009 when the Rothstein scam first came to the attention of the public.

The indictment alleges that Spinosa signed letters known in the financial sector as “lock letters.” Lock letters from banks are the bank’s assurance that money is being “locked” and held separate and apart from other funds for the limited and specific purpose of remission to the beneficiary of the “lock letter.” This assurance, fraudulently relied upon by investors, created the false belief that their invested funds were held separate and apart from other funds and was in effect guaranteed by the bank as segregated and safe. This “guarantee” assures investors that their money is never mixed with other monies and is safe from claims and transfers to others.   Based on these “lock letters” investors sent funds to Rothstein, money which was neither “locked” nor segregated. These funds were allegedly diverted for Rothstein’s personal use and spent on such things as jewelry, watches, expensive cars, boats, houses, and lifestyle excesses of historic proportion.

Rothstein has testified in deposition that Mr. Spinosa lied when he wrote “lock letters.” Rothstein testified further that Spinosa “looked the other way” when it came to suspicious and wrongful banking transfers. Further, that Spinosa acted with full awareness and knowledge both of the wrongfulness of his acts and their criminality. Rothstein testified in depositions, and prosecutors alleged, that Spinosa had “talking points” or scripts that he read to investors which were prepared by Rothstein and that Spinosa participated in conference calls in which investors were defrauded.

BuzzFeed, a social media “gadfly” page, reports that the DEA created a fake Facebook account, filled the page with statements that evoked a response, and made criminal cases. Using personal photographs and information (drawn from the personal information of a woman arrested on Cocaine charges) the DEA tricked her “associates” to reveal incriminating information. Here is what the DEA did…. using the name “Sondra Arquiett” the DEA created a Facebook account.

Source: Facebook

Source: Facebook

The DEA extracted personal photographs and personal information from the cellphone belonging to a New York resident who was arrested in a cocaine case. Using this false Facebook page, some people who knew Sondra Arquiett engaged in Facebook conversations revealing incriminating evidence and making incriminating statements. Photos of her BMW automobile and a narrative of how she was lonesome for her boyfriend were posted. DEA, in a creative binge posted photographs of her on the hood of her car and photos (taken from her cellphone) of her young son and her niece. Now there is a federal lawsuit in U.S. District Court in Albany, New York.

Defending itself, the DEA argued that Arquiett had “implicitly consented” to the DEA using her cellphone contents. It is unknown as to what Arquiett actually said or stipulated as to the use of the contents of her cellphone. Arquiett in her lawsuit against the DEA stated that she was now suffering emotional distress and fear because she was “outed” on Facebook as a cooperating witness and an informant. Aquiett stated that dangerous and violent people who went to the DEA Facebook page were going to kill her because she was an undercover cooperating witness who could testify against them. Her pleadings spoke of “dangerous individuals” who were being investigated and that those “dangerous individuals’ were going to kill her because of the fake Facebook page created by a DEA agent.

Facebook has a policy, known to the DEA and known to the DEA agent that states, “You will not provide any false personal information on Facebook or create an account for anyone other than yourself without permission” [taken from Facebook’s policy and uses agreement that all Facebook users must agree to before creating a Facebook account and constructing a Facebook page]. No comment has been forthcoming from Facebook, but they are summoned to testify at the trial. Arquiett was originally arrested in New York in July of 2010. Her case was resolved in 2012 in Federal Court. Reports of the case can be found in statements by Justice Department spokespersons, NBC and “BuzzFeed.”

The Securities Exchange Commission Office of Investor Education has issued a recent bulletin concerning financial advisors. The SEC and FINRA have been under a great deal of pressure. Both Congress and consumer groups are looking for evildoers. So, the politically easy reaction is to attack financial advisors.

Financial advisors are regulated and their records are kept into primary locations. One is the industry‘s secure reporting system and the other one is open to the public. The one open to the public is Broker Check. It is easily available online to the public. The Broker Check report includes a list of the broker’s registrations, his/her licenses, previous employment, customer disputes, and any disciplinary actions.  Any accusations of professional misconduct are readily available online.

The investment advisor public disclosure website has more background information. Information can also be obtained from state regulatory agencies. Most states have their own agency regulating financial advisors and investment vehicles. There are other web sites and online locations to look. Yahoo Finance has information both on current market activities and financial advisors. Forbes magazine, likewise, at Forbes.com. Some security lawyer websites and blogs also have lists of misdeeds. My own website security law website lists alphabetically and defines the myriad of misdeeds wrongful actions and crooked activities of bad stockbrokers.

The SEC maintains regional offices which you can locate online at the SEC website. Offices in Miami and Atlanta have over 150 full-time SEC lawyers who are charging criminally for violations of the securities act.

If you believe you have been the victim of a financial fraud, you can contact the SEC. The SEC is a government agency created by statute. It has both enforcement and regulatory responsibilities.  FINRA is not a government agency. It is a quasi-public quasi-governmental agency. It functions as a dispute resolution form. If you contact FINRA, which maintains a readily accessible website, you can find out how to begin an arbitration proceeding against a financial advisor. There was an expedited process for claims under $25,000, which can easily be done without an attorney. You will be assigned one arbitrator who will hear your complaint and make a finding. For man is in excess of $25,000 a three-panel arbitration board is convened for the arbitration.