Jacksonville Criminal Lawyer Blog

Florida Law Focuses on Mortgage Fraud

Published on: November 27, 2008 | by Lasnetski Gihon Law

In the second quarter of 2008, Florida ranked 4th in the nation in percentage of home foreclosures. As a result of the increase in foreclosures in Florida, the Florida legislature and law enforcement officials are cracking down on what they consider mortgage fraud. This year, Florida passed into law the Foreclosure Rescue Fraud Prevention Act, which specifically deals with what is referred to as “rescue foreclosure” schemes to defraud. In such cases, the government alleges that companies target individuals who are headed towards foreclosure, offer them a loan to avoid foreclosure and deceive them into signing over the title to the property which is then sold by the company, often after collecting fees, refinancing and stripping the home of equity. The law allows homeowners a five day period to cancel any such contract and provides for significant financial penalties for any company that violates the law. The Florida Attorney General’s Office is currently pursuing a lawsuit against National Foreclosure Management claiming they defrauded Florida homeowners out of approximately $1.7 million in home equity.

The Law of Entrapment in Florida

Published on: November 23, 2008 | by Lasnetski Gihon Law

Entrapment is a word that is often misused and misunderstood. In Florida criminal law, entrapment is a defense to a crime, such as sale of drugs or drug trafficking, that can be used in limited circumstances. For instance, in a recent criminal case out of Florida, a defendant was charged with the crime of sale of marijuana (aka sale of cannabis). The defendant was not known to be a seller of marijuana but did use marijuana from time to time. The local police decided to use a friend of the defendant’s to encourage the defendant to sell marijuana to him. The “friend”, or confidential informant, was facing criminal drug charges himself and agreed to help the police in exchange for having his charges dropped. The friend contacted the defendant and asked the defendant if he could sell drugs to the friend. The defendant said he did not have any drugs and refused. The friend proceeded to call the defendant 18 times requesting to buy marijuana from him. Some of these calls were made late at night and some were to his work. Finally, the defendant agreed to buy marijuana from a dealer and split it with the friend. None of the initial contacts and communications were monitored by the police, just the ultimate exchange of the marijuana.

The defendant was then charged with sale of marijuana and later filed a motion to dismiss the charges claiming he was entrapped into selling the drugs. Entrapment is a defense that is not successful often, but it was applicable in this case. Generally, the defense of entrapment applies when a defendant is induced to commit a crime that he/she would not normally commit. If the defense is successfully presented, the charges are dismissed. In this case, the court focused on the conduct of law enforcement and the friend and found that the defendant was improperly entrapped into committing the drug sale. Some of the relevant factors in favor of the defense included: the police had no reason to believe the defendant was selling drugs before this incident, the “friend” had a lot of incentive to make the defendant agree to sell him drugs including payments per drug deal and the dismissal of his criminal charges and the police never supervised the interactions between the friend and the defendant.

While the defense of entrapment is not often successful, where the police find someone who is not predisposed to commit a crime and use excessive means to get the person to commit the crime, entrapment can be successfully asserted as a defense to have criminal charges dismissed.

In Florida, You Can Get a DUI For Riding Your Bike While Intoxicated.

Published on: November 21, 2008 | by Lasnetski Gihon Law

In Florida, the “driver” of a “vehicle” who drives with a blood alcohol content (BAC) of 0.08 or more or while his/her normal faculties are impaired may be guilty of driving under the influence (also referred to as DUI, DWI or drunk driving). Does the Florida DUI law also include a person who is driving a bicycle while intoxicated? Yes, it does.

In a recent Florida criminal case, a defendant was found guilty of DUI after he was arrested for driving his bicycle while under the influence of alcohol. It was his third DUI conviction, and the prior DUI conviction occurred less than 10 years earlier. Under Florida law, that third conviction within ten years meant a driver’s license suspension of at least 10 years.

The defendant plead no contest to the DUI charge, but his criminal defense lawyer appealed the 10 year driver’s license suspension arguing that it did not apply to people driving a bicycle. The Florida court disagreed. The term “driver” referenced in the Florida DUI laws means any person who drives or is in actual physical control of a vehicle on the road. “Vehicle” is broadly defined as any device by which a person may be transported upon the road. Based on these broad definitions, a person driving a bicycle would fall within the application of the Florida DUI laws.

Do Higher Unemployment and a Bad Economy Increase Crime Rates in Jacksonville, Florida?

Published on: November 18, 2008 | by Lasnetski Gihon Law

It is no secret that the housing market crashed months ago and the financial markets seemed to follow resulting in difficult economic times for people throughout Jacksonville and Florida. Politicians and media liberally are using the words recession, and even depression, to predict what is, or may be, happening to our economy. Another condition that logically follows from crashing housing and financial markets and a slowing economy is rising unemployment.

One question that we considered theoretically is whether the current economic state would have any effect on crime rates. I came across an article at Forbes.com which indicated that the Federal Reserve Bank of St. Louis analyzed crime in 28 U.S. cities to determine if there is a connection between unemployment and low wages and crime. According to the report, there is very little correlation between rising unemployment and lower wages and an increase in the crime rate over a short period of time. When there was a connection, it seemed to result in a minimal rise in crime and mainly in the area of property crimes such as theft and burglary. Other studies have analyzed the longer term effects of unemployment and poverty and crime, i.e. in terms of many years, not months, and found a greater connection.

Florida Students Charged with Federal Crimes for Changing Grades

Published on: November 16, 2008 | by Lasnetski Gihon Law

Students at Florida A & M University were indicted recently for allegedly hacking into the school computer and changing the grades and residency status of approximately 90 people, according to a local news website. According to school and law enforcement officials, the students changes numerous grades from F’s to A’s and changed the residency status of students to instate so that the students would be eligible for financial assistance and grants and the cheaper instate tuition. The three students at Florida A & M in Tallahassee, Florida were indicted by a federal grand jury on charges of conspiracy to commit wire fraud, unauthorized computer access, aggravated identity fraud and identity fraud. If convicted, the students face significant prison time.

According to reports, the Florida A & M students were able to access the school’s network and change the grades by installing a keystroke logger that records the keystrokes of the person using the school computer and allows a hacker to learn the username and password. This and other identity theft techniques have been discussed previously on this blog here.

DNA Increasingly Used to Solve Property Crimes

Published on: November 14, 2008 | by Lasnetski Gihon Law

The use of DNA evidence by Jacksonville police and the Jacksonville State Attorney’s office, among other agencies, involves collecting biological material, analyzing the material, developing a profile and then attempting to compare it to profiles in state and/or federal databases where the DNA profiles of various people are stored. In the past, this process was expensive and lengthy and thereby reserved primarily for violent crimes such as murder and rape. However, the cost and time involved in DNA investigations and analyses have come down to the point that law enforcement officials are using DNA to solve property crimes such as burglary, theft and auto theft. Back in the late 1980’s, when DNA analysis was in its early stages, large DNA samples were required for them to be useful, and it was expensive and time consuming to complete the analysis and comparison. Today, the process can be done with much less of a sample and, in some cases, it can take several hours and less than $100. As a result, law enforcement officials are increasingly of the opinion that a criminal investigation involving DNA is feasible for certain property crimes, particularly when the FBI estimates that the cost of property crimes in the United States was approximately $17.6 billion in 2007.

Just about any biological material can be used as a DNA sample. For instance, if a burglar decides to take a bite out of some food at the house from which he/she is stealing, if a thief leaves skin cells in the car he/she stole or if a thief cuts him/herself on a broken window used to gain entry into a house or building, there could be DNA that could be used to tie that person to the scene of the crime. When police decide to conduct an investigation involving DNA collection and analysis, they are five times more likely to identify a suspect than with fingerprints alone.

Study Finds That Anti-Drug Campaign Was an Expensive Failure

Published on: November 11, 2008 | by Lasnetski Gihon Law

As part of the war on drugs, the federal government initiated the National Youth Anti-Drug Media Campaign back in 1999 and spent approximately $1 billion on it. The study had the laudable goal of educating young people and trying to deter them from using drugs. However, a recent study has indicated that not only has the $1 billion campaign apparently failed, it may have made young people more likely to use drugs in some cases. The study involved interviewing thousands of young people to gauge their exposure and reactions to anti-drug advertisements. According to the report, 94% of the young people interviewed indicated that they were exposed to the campaign (about 2-3 times per week) but it often had no positive effect. In fact, the study showed that kids between the ages of 12 1/2 and 18 who saw the ads more often than others were more likely to indicate a desire to use drugs.

Former Star NFL Quarterback Found Not Guilty of DUI

Published on: November 9, 2008 | by Lasnetski Gihon Law

Kenny Stabler was a star quarterback in the NFL for many years, many years ago. Apparently, he was arrested on drunk driving charges in Alabama (also referred to as a DWI; in Florida, referred to as DUI or driving under the influence of alcohol or drugs). According to an article on Sportsline.com, he was recently acquitted, or found not guilty, of those DUI charges.

The article notes that Stabler refused the request from the police officer to submit to the breathalyzer (the breath test that attempts to estimate blood alcohol content (BAC)). Normally, when this occurs, the state will attempt to use that refusal against the DUI defendant at trial by saying that he/she refused to submit to the breathalyzer because he/she knew the results would show that he/she was impaired or over the legal limit (0.08 in Florida). However, in Stabler’s case, the judge did not allow the state to use Stabler’s refusal of the breathalyzer as evidence to support the DUI charge and found that the state did not meet its burden to prove that Stabler was driving under the influence.

The reason the judge did not allow the refusal of the breathalyzer into evidence at the DUI trial was because the officer did not observe Stabler the entire time prior to requesting that he take the test. In Florida, if a person is stopped and the police officer performs a DUI investigation which results in a request to take the breathalyzer test, the officer must watch the suspect for twenty minutes prior to taking the test. This is because certain things the suspect may do, such as vomit or burp, may affect the accuracy of the breathalyzer tests.

What Does a Defendant Need to Know to Commit the Federal Crime of Aggravated Identity Fraud?

Published on: November 7, 2008 | by Lasnetski Gihon Law

Largely in an effort to crack down on illegal aliens in the United States, the government enacted the federal crime of aggravated identity fraud which is punishable by a mandatory two year prison sentence. This is a very severe mechanism used by the federal government to address the issue of illegal aliens coming into the US and obtaining fake social security cards and other forms of identification in an effort to obtain jobs and other benefits.

However, it is not clear, and the circuits are divided as to, what exactly the government needs to prove to establish that a person is guilty of the federal crime of aggravated identity fraud. The criminal law provides that a person commits aggravated identity fraud when he/she knowingly and without authority uses a means of identification of another person. For example, an illegal alien may come to the United States and create a fake social security card using nine numbers chosen at random. If those nine numbers do not form the sequence of a real person’s social security card, did the person who created the social security card commit the crime? In other words, in order to be guilty of aggravated identity fraud and receive the mandatory two year prison sentence, does the person who created the fake social security card need to know that he/she is using the card without authority or does he/she need to know that the social security number actually belongs to another person?

If it is the latter, it makes the crime much harder to prove as the government would ostensibly have to show that the social security number was a real one that actually belonged to another person and the defendant knew it. Clearly, it would be easier for the government to merely have to prove that the defendant knew he/she was improperly using the social security card or number regardless of whether he/she in fact knew if it belonged to anyone else.

Federal Law Enforcement Officials Struggle to Handle White Collar Crime Cases

Published on: November 5, 2008 | by Lasnetski Gihon Law

The FBI and other federal law enforcement officials are having a difficult time keeping up with white collar cases, according to a recent article on the NY Times website. At a time when white collar crimes involving fraudulent lending practices and mortgage fraud have increased due to the nature of the current economic climate, federal law enforcement officials are struggling to investigate these crimes due to limited resources and the continuing effects of a shift in personnel and priorities after 9/11. According to the article, the FBI just does not have the resources to devote to white collar crimes related to the current financial crisis. After 9/11, the FBI shifted approximately 1800, or 1/3rd, of its agents to terrorism and intelligence related departments. As a result, white collar criminal cases have seen a decrease in the number of cases investigated and charged. Although one would expect that mortgage fraud cases would increase the last year or so given the nature of the housing crisis, the article indicates that mortgage fraud cases are down 36% since 2001.