Articles Posted in Uncategorized

Florida Governor Ron DeSantis passed an executive order in July of 2021, banning vaccine passports. A vaccine passport occurs when a business or other entity requires their patrons and customers to present proof of vaccination. Since the bill was passed in July, enforcement has been sparse, and businesses caught requiring vaccine passports faced little tangible consequence.

Recently, the Republican-controlled Florida legislature has approved and passed the law signed by Governor DeSantis earlier this year. This allows the Florida Department of Health to begin harsher enforcement of the vaccine passport ban. According to the Department of Health, any Florida business found requiring proof of vaccination from patrons, customers, or any other member of the public will face a $5,000 fine. Once the fine is issued, businesses will have a brief thirty-day period to appeal before payment is due.

Critics to this bill make three main arguments. First, they argue the law violates the First Amendment of the United States Constitution. Pundits argue the state has no authority to restrict a business or individual’s expression. Second, they argue vaccine passports violate the very same free market principles that Governor DeSantis champions. Finally, they argue the ban goes against the greater health interests of the public.

Despite heavy criticism, Governor DeSantis argues he is making decisions based on empirical evidence, upholding individual rights principles. DeSantis stands by the notion that this to be a legitimate use of state executive power.

Florida Federal Courts Create a Contentious Legal Divide

In August 2021, a federal judge temporarily sided with Norwegian Cruise Lines, ruling that Florida’s law banning vaccine passports was unconstitutional on free speech grounds. The ruling held that the First Amendment prohibits the enactment of laws abridging freedom of speech, and that vaccine passports fell squarely into constitutionally protected waters. In response, Governor DeSantis stated he would appeal the ruling.

What Now?

Beginning September 16, 2021, the Florida Department of Health will begin enforcing the ban on vaccine passports. After that date, Florida businesses will face $5,000 in fines for requiring the public to present a vaccine passport. The law allows the Department of Health to begin collecting payments immediately, and whether the courts will find the law unconstitutional is yet to be decided.

The Federal Sentencing Alliance and Attorney Ralph S. Behr have co-authored “Prison Term Reduction Recidivism Reduction Programs and Inmate Early Release Under the First Step Act,” a book analyzing and critiquing the First Step Act. The book is the most comprehensive analysis of the First Step Act time credits system published to date. Attorneys will find this publication to be a resourceful utility when dealing with time credit disputes.

The authors analyze the numerous pitfalls of the act, ranging from individualized time credit disputes to systematic claims of undermining. Since the act’s inception in 2018, hundreds of prisoners, attorneys, and lawmakers have claimed of the shortfalls, disparities, and discrepancies apparent in the system created by the act.

For example, in 2019 Illinois State Senator Dick Durbin accused the Bureau of Prisons of undermining the First Step Act by intentionally resisting retroactive sentencing relief. According to Senator Durbin, of the 31,000 inmates who requested compassionate release during the COVID-19 pandemic, the Bureau of Prisons approved a mere 36.

Numerous claims have been made regarding the ineffective nature of the First Step Act. Pundits assert the Bureau of Prisons has shortened the date spans for prisoner release, arbitrarily shortened the timing of awards, and failed to make a timely implementation of earned time credits. The result: the Department of Justice and Bureau of prisons have joined forces to arbitrarily implement policies that squander any chance of success under the First Step Act.

In their book, Attorney Ralph Behr and the Federal Sentencing Alliance examine the failures of the First Step Act. This book is the premier guide for prisoners, prisoner’s families, and prisoner’s attorneys who are facing time credit disputes.

The Authors

Attorney Behr is a board certified criminal trial attorney located in South Florida. He practices in Florida and New York state and federal courts. His practices concentrates on major white collar crimes, major felonies, drug trafficking, and tax fraud. Attorney Behr is passionate about criminal defense and prisoner’s rights.

The Federal Sentencing Alliance is a national consortium of federal sentencing mitigation experts. The Federal Sentencing Alliance is an expert team of attorneys specializing in all aspects of federal sentencing mitigation, offering full investigative services nationwide at all stages of prosecution. The Federal Sentencing Alliance has several publications relating to key provisions of the First Step Act of 2018 available at www.federalsentencingalliance.com.

The Federal Sentencing Alliance is prepared to assist attorneys in sentencing mitigation.

Ralph S. Behr

General Counsel, Federal Sentencing Alliance.

Cryptocurrencies are best described as a high risk, high reward investments. While crypto traders may be willing to accept the risks of trading such a volatile commodity, they need to be aware of a growing threat to their wallets: crypto theft and scams. Most cryptocurrencies run without connection to government or centralized agency, creating an aura of uncertainty and intrigue for crypto enthusiasts. For investors and crypto users, this may seem an exciting prospect, but it also means your cryptocurrency account is not insured by the United States government. If assets are stolen from your crypto account, your account is compromised, or your digital wallet manager goes out of business, the United States government has no obligation to repay your losses or help retrieve your money.

Scammers and thieves have also taken note of the lawlessness surrounding cryptocurrency, taking advantage of those unprotected or unfamiliar with common scams. According the Federal Trade Commission, almost 7,000 crypto traders lost over $80 million between October 2020 and March 2021. (FTC Report – Consumer Protection: Cryptocurrency buzz drives record investment scam losses) Crypto-based crimes are on the rise. In 2016, Crypto Head, an international organization dedicated to cryptocurrency research and education reported 340 total reported crypto-related crimes in the United States, compared to the 82,000 reported in 2020. (Crypto Head – Crypto Crimes, Comprehensive Overview)

Cryptocurrency scams and thefts can manifest in a variety of ways, ranging from large scale Ponzi schemes that trick wealthy investors, to more individualized cases involving blackmail. In May 2021, the SEC charged six department heads from BitConnect, a cryptocurrency that devised a scheme to defraud billions from investors and traders. BitConnect was widely traded, with 1.5 million people holding stock in the currency. In a two week period, the founders of the currency made off with over $2.5 billion in profits, causing the coin to fall from $432 per coin to just $26. (BitConnect Scam: The $2.6 BN Ponzi Scheme)

In order to protect themselves from cryptocurrency scams, consumers should follow the age old rule: avoid offers that seem to good to be true. Companies offering generous or multiplying profits with little risk are usually scams. Also, if business or individual insists payment be made using a cryptocurrency, it’s best to steer clear. Finally, be aware of schemes that promise a “better way to earn money” through crypto, you may just find yourself at the bottom of a crypto ponzi scheme.

The recent wave of crypto-related crime has caused serious trouble for lawmakers and the SEC as they look to play catchup with clever criminals. Congress is currently considering a bill that would require the Financial Stability Oversight Council to treat cryptocurrencies as financial markets. Additionally, corporations who hold cryptos and enjoy revenues from them would need to gain bank holding classification from the Federal Reserve. This bill represents a much larger plan for governments to reign in and regulate cryptocurrencies. If you have been charged with a cryptocurrency related crime, contact an experienced and competent criminal trial lawyer with an understanding of this developing field of law.

As voters and lawmakers continue the trend of relaxing Marijuana laws across Florida, a contentious debate has evolved surrounding the drug’s fourth amendment implications. Now that some uses of marijuana are legal, the question is whether a police officer smelling marijuana coming from your vehicle is enough to justify a search of the car. For now, the consensus is yes, the odor of Marijuana is enough evidence for the cops to search your vehicle.

The issue is decidedly more complex, striking at the heart of a decades-raging fourth amendment debate over what evidence is necessary to permit a warrantless search. Each case is different and an experienced Miami criminal law attorney should be consulted if possession of marijuana charges, or possession of marijuana with intent to distribute charges are filed against you.

A Fourth Amendment Issue

Under Florida law and in line with the fourth amendment, the general rule is that an officer must have at least an objectively reasonable basis for suspecting criminal activity is afoot before conducting a warrantless search.

Until recently, all forms of Marijuana were illegal in Florida. This made for relatively easy police work and a clear fourth amendment policy: if police smell marijuana coming from your vehicle, they can search it. For decades, this stood unchallenged.

The problem arose with the legalization of hemp, CBD, and medical THC. CBD and Hemp are both derived from the same plant as illegal cannabis, and both look and smell the same as cannabis. Someone smelling marijuana would have no way of determining whether the scent was legal hemp, or illegal cannabis. When the Florida legislator legalized hemp in 2019, police could no longer rely on their sense of smell to determine whether illegal activity was taking place. In 2019 and 2020, criminal defense attorneys were poised to argue that searches stemming from the odor of marijuana should be ruled unconstitutional.

Florida Law: A Changing Tide

Following the 2019 legalization of hemp, Miami and Florida law enforcement agencies and State Attorney’s adopted an “Odor Plus” standard. Under the new standard, cops were forced to detect the odor of marijuana, plus another indicator of illegal activity to overcome the probable cause standard and search a vehicle.

Across Florida, defense attorneys began arguing that arrests stemming from the odor of marijuana should be dropped for lack of probable cause under the fourth amendment. In 2020, Florida courts were split on the issue. The Twentieth Judicial Circuit Court of Florida held in August of 2020 that marijuana odor alone cannot be the sole basis for a probable cause search. See State v. Nord, 28 Fla. L. Weekly Supp. 511 (Fla. 20th Cir. Ct. Aug. 8, 2020 ). Just three months prior, the Ninth Judicial Circuit of Florida found differently, holding that an officer who smelled marijuana during a traffic stop had probable cause to conduct a warrantless search. State v. Ruise, 28 Fla. L. Weekly Supp. 122 (Fla. 9th Cir. Ct. Mar. 20, 2020).

Can Police Search Your Car Based on the Odor of Marijuana in 2021?

While this area of law is still expanding, the answer is yes, as of March 2021, police can search your car if they smell burnt marijuana. The Second District Court of Appeals held that the recent legalization of hemp was not enough to overcome the precedent of permitting warrantless searches based on the odor of marijuana.

Each case is unique, and this area of law is continuously evolving. An experienced Miami criminal trial attorney should be consulted to spot the potential weaknesses in the case against you.

In 2018, Senator Dick Durbin championed the landmark First Step Act, by being one of its lead authors and advocates. The Act was a massive step forward in United States prison reform. Among other things, the Act granted judges more judicial discretion in the sentencing of low-level, non-violent drug offenders, while simultaneously supporting inmate societal reintegration through targeted reentry programs.

Fast forward to 2021, Senator Durbin has now drafted the First Step Implementation Act of 2021, or S. 1014, which proposes implementation enhancements to the First Step Act. The 2021 Act builds off the groundwork laid in 2018. The Implementation Act corrects interpretation errors, changes key United States code safety valve qualifiers, proposes that the First Step Act apply retroactively to those who previously received stacked minimum sentences, allows judges more discretion in weighing the seriousness of the defendant’s record, expands transparency, expands inmate standing to complain in court, and allows for more leniency in the granting of juvenile sealing and expungement.

Senator Durbin’s First Step Implementation Act of 2021 has the full support and commendation of the Federal Sentencing Alliance.

What is the Federal Sentencing Alliance?

The Federal Sentencing Alliance is a national consortium of federal sentencing mitigation experts and legal technical writers, specializing in all related federal sentencing legal writing, federal plea agreement assessments, PSIR objections, U.S.S.C. Datafiles analysis, and federal sentencing mitigation investigation. The Federal Sentencing Alliance is a team of experts handling all aspects of federal sentencing mitigation, offering full investigative services nationwide at all stages of prosecution. The Federal Sentencing Alliance has published several books in this practice area, including numerous analyses of key provisions of the First Step Act of 2018 available online or from www.federalsentencingalliance.com.

The Federal Sentencing Alliance is passionate about assisting attorneys and clients in federal sentencing mitigation, as well as advocating for legislative changes to prison reform.

Ralph S. Behr

General Counsel, Federal Sentencing Alliance

IMG_6709-2-194x300POLICE CONTACT       

100 ‘most asked ‘ questions

CAN THE POLICE STOP ME ON THE STREET?

Yes.

They can stop you.

But you don’t have to talk to them.

If you were “stopped” in the street by an insurance salesman you would walk away.  The only thing a cop is selling is jail.  Don’t buy it.

Think this way…

If you have nothing to hide, you have nothing to prove.

If you have something to hide, you do not have to volunteer information that can be used to convict you.

 

IMG_6709-2-194x300POLICE CONTACT          

100 ‘most asked ‘ questions

WHY IS THE COP TALKING TO ME?

9 times out of 10 he’s talking to you because he needs something more from you to make a valid arrest.

The police cruiser may have “TO SERVE AND PROTECT” printed on the door, but that’s not the truth.  The police are there “TO INVESTIGATE AND ARREST”. 

They are not there to protect your rights.  That’s what a lawyer is for.

If a police officer is talking to you assume he is conducting an investigation.  DO NOT cooperate in a police investigation if you are the person of interest.

You cannot know what is in the mind of the police officer.  You can only assume he is conducting an investigation with the objective of making an arrest.   It is naïve to assume anything else.

IMG_6709-2-194x300CRIMES

50 ‘most charged’ crimes defined

PERJURY

To prove Perjury the following elements must be proven:

  1. The person took an oath to tell the truth.
  2. While under oath the person made a false statement that he/she DID NOT believe to be true.

Perjury can also occur by contradictory statements, as follows:

While under oath a person made statements which are contradictory.   Both statements were made knowingly and intentionally.

Yesterday, the government made public the set of internal rules that are used to compile the list of names on the infamous No-Fly list. Now, the right of U.S. citizens to move among and between the States has its roots in the U.S. Constitution. The Commerce Clause, the Comity Clause, and the Due Process Clause are all the fundamental laws on the right to travel. When the government tells citizens of the U.S. that their right to unfettered travel has been removed, it gets civil and human rights groups, as well as business interests to take action. And it has.

300px-FBISealThe fact that air travel is only one of many ways to travel makes the No-Fly rules difficult to challenge constitutionally. Those alternative methods of transportation keep the No-Fly rules insulated from primary constitutional law, but not from the rule making Due Process Clause (which is the rule making law). In fact, the Due Process Clause is what is behind the apparent open view policy, which forced the Justice Department and the Transpiration Department to make the No-Fly list rules public in the first place. And although the rules have now been made public, there is no reason to believe that the screening process will become lenient, but at a minimum, the public will see more transparency in the process by which the who, why and when of how names are placed on the No-Fly lists and how they are removed.

As we know, security on domestic air travel is a government function. Screening, for national security purposes, was done under the procedures set out in a document, previously secret, identified as “Watchlisting Guidance.” The procedures were most recently updated in March 2013, and were not available to public scrutiny. All that changed when an online magazine, “The Intercept” obtained “Watchlisting Guidance” and revealed that they had the document. The response from Attorney General Holder was to make the document public. This response is in itself of no real consequence because the next day the internal document and its guidelines were reportedly re-issued and remains secret.

For you to see the skeletal documents that outline the purpose directed policy, one can refer to a 2011 document, which contains a set of rules that the F.B.I. disclosed previously. Other places to look for a quick read are an affidavit from Attorney General Eric Holder and the ruling from a Federal Court judge in Oregon. Attorney General Holder has maintained that the Watchlisting Guidance should remain out of public scrutiny, and the courts are most likely not to force the document into the public domain.

What is, however, of both practical and legal significance is that the government is yielding to transparency over secrecy, and still striving to maintain a high level of security for domestic and international air travel. For individuals, it means that a process and procedure may soon be in place for those who are banned from plane travel to have their status reviewed in a rational and considered forum. Either the government will accede to this or face continued legal battles for a process to review.

Ever wonder why some sentences are longer than others? Have you or one of your “peeps” (peoples) been sent to the big house for an extended stay, while others seem to breeze in and out with more major convictions? Wonder why or do you know?
The sentencing process, when one is before a judge and pleading for mercy, does not begin with a well suited lawyer, it begins with a well prepared lawyer. When was the last time any lawyer you know wrote a sentencing memorandum? I’ll wager never, unless I’m your lawyer.

Sentencing memorandums are the Holy Grail to a lighter sentence. Why you ask? Why indeed! The answer is that judges hate them because it means that an appeal is next, and to avoid an appeal most judges will sentence on the low end of the guidelines and leave for another defendant that old thrown away key sentence. Lawyers know this but don’t do it because it takes up time, time they need for golf or relaxation. So here’s what you do: If you are interviewing a lawyer for a criminal case ask her/him to include the promise of a sentencing memorandum in the retainer agreement. It can make a big difference when the pedal meets the medal and it’s time for a reservation in a State residence. Know now and you’ll do better. And, knowing more means buying my app on the Apple Store for you iPad and iPhone: CRIMINAL LAW 101 by Ralph Behr. As of July 2011 after only seven months there were over 1000 copies downloaded and only one buyer asked for their money back…..and he was from England!

Contact Information