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Category: blog-page

Coerced Confessions w/ Matt Ladd, Maggie Arias, Jeff Weiner, and Joe Stone

Posted on by M. Ladd

Lies. Truth. Some people live it, some people tell it, and some people mix both into one and don’t do either very well.

When it comes to the criminal justice system, it’s been said that there are three sides to every story: His, hers, and the truth.

No matter which category you fall into, there’s one thing you should never do: if you’re on the other side of the interrogation table, don’t talk. Not a single word, other than, “Lawyer.”

Remember, you have the right to remain silent. It’s your constitutional guarantee, and if you don’t use it, you could lose its benefit.

Confessions are not always accurate or truthful, but when coerced, the accused become their own worst enemy and the presumption of innocence is out the window.

When there is injustice for one, there is injustice for all. Welcome to Felony Miami. Let’s air it out.

Federal Money Laundering

Posted on by M. Ladd

The pattern jury instruction for the 11th Circuit (Miami) requires intent to lauder. Below is the exact instruction and some notes. If you are charged with Money Laundering get advice from an experienced lawyer.
O74.1
Money Laundering:
Promoting Unlawful Activity
18 U.S.C. § 1956(a)(1)(A)(i)
It’s a Federal crime to knowingly engage in certain kinds of financial transactions commonly known as money laundering.
The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt:
(1) the Defendant knowingly conducted or tried to conduct, a financial transaction;
(2) the Defendant knew that the money or property involved in the transaction were the proceeds of some kind of unlawful activity;
(3) the money or property did come from an unlawful activity, specifically [describe the specified unlawful activity alleged in
the indictment]; and
(4) the Defendant was involved in the financial transaction with the intent to promote the carrying on of that specified unlawful activity.
To “conduct a transaction” means to start or finish a transaction, or to participate in a transaction at any point.
A “transaction” means a purchase, sale, loan, promise, gift, transfer, delivery, or other disposition of money or property.
[A transaction with a financial institution also includes a deposit, withdrawal, transfer between accounts,
exchange of currency, loan, extension of credit, use of a safe deposit box, or purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument.]
A “financial transaction” means –
[a transaction that in any way or to any degree affects interstate or foreign commerce by sending or moving money by wire or other means.]
or
[a transaction that in any way or to any degree affects interstate or foreign commerce by involving one or more “monetary instruments.” The phrase “monetary instruments” includes coins or currency of any country, travelers or personal checks, bank checks or money orders, or investment securities or negotiable instruments in a form that allows ownership to transfer on delivery.]
or
[a transaction that in any way or to any degree affects interstate or foreign commerce by involving the transfer of title to any real property, vehicle, vessel, or aircraft.]
or
[a transaction involving the use of a financial institution that is involved in interstate or foreign commerce, or whose activities affect interstate or foreign commerce, in any way or degree. The phrase “financial institution: includes [give appropriate reference from 31 U.S.C. § 5312(a)(2) or the regulations promulgated under it]].
“Interstate or foreign commerce” means trade and other business activity between people or businesses in at least two states or between people or businesses in the United States and people or businesses outside the United States.
To “know that the money or property involved in the transaction came from some kind of unlawful activity” is to know that the money or property came from an activity that’s a felony under state, federal, or foreign law.
The term “proceeds” means any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of the activity.
The term “specified unlawful activity” means [describe the specified unlawful activity listed in subsection (c)(7) of the statute and alleged in the indictment].
The term “with the intent to promote the carrying on of specified unlawful activity” means that the Defendant must have [conducted] [attempted to conduct] the financial transaction for the purpose of making easier or helping to bring about the “specified unlawful activity” as just defined.

ANNOTATIONS AND COMMENTS
18 U.S.C. § 1956(a)(1) provides:
Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity – –
(A)(i) with the intent to promote the carrying on of specified unlawful
activity [shall be guilty of an offense against the United States]. Maximum Penalty: Twenty (20) years imprisonment and applicable fine. In United States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995), the Court held that although proof of willfulness is not a statutory element of money laundering, where the indictment expressly charged willfulness, the District Court erred in not giving the usual instruction on willfulness (Basic Instruction 9.1A).
The term “proceeds” in 18 U.S.C. § 1956 was expressly defined by the Fraud Enforcement and Recovery Act of 2009 (“FERA”), Pub. L. No. 111-21, effective May 20, 2009. The FERA expanded the concept of monetary proceeds, for purposes of enforcing prohibitions against money laundering, to include gross receipts. See 18 U.S.C. § 1956(c)(9).
The FERA was a direct response to United States v. Santos, 128 S. Ct. 2020 (2008). In
Santos, a plurality of the U.S. Supreme Court held that the definition of the term “proceeds” in 18 U.S.C. § 1956(a)(1)(A)(i) refers to “profits” rather than “receipts” when applied to a prosecution arising from an illegal stand-alone gambling operation. Until the FERA, the definition of “proceeds” in the money laundering statute remained unclear. The Eleventh Circuit has construed the fragmented Santos opinion narrowly. In United States v. Demarest, 570 F.3d 1232 (11th Cir. 2009), a case in which the trial took place prior to the FERA’s enactment, the Court noted:
Santos has limited precedential value… The narrow holding in [the case], at most, was that the gross receipts of an unlicensed gambling operation were not ‘proceeds’ undersection 1956…Id. at 1242.

Source: Miami Herald

Marijuana Possession is Hardly a Crime Anymore, but Since It’s the Cops Choice You Can Still Be Charged

Posted on by M. Ladd

Source

Miami-Dade County has passed an ordinance that gives police officers the option of issuing a $100 citation (like a parking ticket) for small amounts of marijuana possession.  As long as you possess less than 20 grams (about 36 joints depending on the size) you could have the bitter sweet luck of getting a ticket for $100 instead of a criminal charge.  The thinking is that it can save a lot of kids from getting rap sheets and the also free up police to focus on more serious crimes.

But depending on the officer’s mood (and most likely what you do to influence the officer’s mood being respectful vs. being disrespectful) will likely determine if you get the citation vs. getting arrested.  The law on the books says that possession is a first-degree misdemeanor which means the charge carries a maximum one-year in jail and up to a $1000 fine.  Also, if you are convicted (and only 2% of people are) you could lose your license for two years.

Marijuana laws may be becoming a little less harsh but are still serious if you have prior offenses in your criminal record, possess at or near schools, or sell it.  If you know someone that has been charged, it’s a good idea to call an experienced criminal lawyer right away.

Sexual Assault & What You Can Do About It

Posted on by M. Ladd

Weinstein, Sheen, Franken, and now Charile Rose. Treating women right is a hot topic in the news. Ever wonder why Bill Cosby is facing criminal charges others end up paying settlements?

I’ve won cases involving rape and child molestation in both civil and criminal courts and during university investigations. Sexual assault is as serious as it sounds. First, there is a horrible accusation. Next, it needs to be verified or somehow corroborated. Then with the evidence available, a criminal case may be put together if the facts can convince a jury beyond a reasonable doubt. If memories fade or there isn’t enough evidence to convince a jury that consent was lacking, then all that may be left is a civil suit to try and recover something from someone that contributed to the assault. Just because the evidence doesn’t support a criminal case doesn’t mean the victim is out of options.

First and foremost, sexual assault in Florida is known as “Sexual Battery” and/or “Lewd or Lascivious Battery”. The crime is characterized by the degree of the touching- exactly what touched what and how exactly if there was penetration. The offense is further characterized by the victim. Was she (or he) under 12 or over 65. Was the victim forced or unaware? Was a weapon involved? Did the act cause great bodily harm or pain, permanent disability, or permanent disfigurement?

Sexual battery requires that the accused (1) penetrated or has contact with the sexual organ of the victim (including the anus) or mouth of the victim, (2) without the victim’s consent. Lewd and Lascivious Battery is pretty much the same as sexual battery but consent isn’t the issue, the age of the victim is.
An important distinction is that the age of consent is technically 18 in Florida. However, if two teenagers engage in consensual intercourse, so long as one is 16 years-old or older and the other is 24 or younger then they should be protected by the State’s Romeo and Juliet Law (Fla. Stat. 794.05).

What exactly is “consent”?  It’s defined as an “intelligent, knowing, and voluntary consent and does not include coerced submission”. Consent does not mean the failure of the victim to offer physical resistance to the offense either.

The criminal case hinges on the state’s ability to prove the elements of touching and a lack of consent for a sexual battery beyond and to the exclusion of a reasonable doubt. For a lewd and lascivious, the state needs to prove the touching and that the act occurred when the parties were within the necessary age ranges beyond a reasonable doubt.
With most of the cases making news today involving the celebrities in Hollywood, reporters, and politicians its very likely that the time allowed to bring the suit has passed or there isn’t sufficient evidence to corroborate the allegation. Assuming there’s still time to bring charges (and there are a lot of factors to determine if a criminal case can be brought beyond the usual time-limits) then the next issue goes to corroboration to enhance the believability of the accusation. Did the victim mention the attack to someone shortly after it happened? Or is the report delayed by weeks, months, or years? The more time passes the more a jury is going to wonder what took so long to speak up. Memories fade, “the when, where, -why, who-else-saw-something” all get harder to prove with the certainty required.

In addition to the testimony as evidence, what about fluid samples, hair collections, evidence of struggle like blood, scars, bruising, the perpetrators skin under nails, broken bones, and the location where the struggle took place to corroborate the allegation, etc? All that evidence helps a jury know that they are making the right decision. If they don’t have it, the jury is left to wonder why.

Assuming there is a party that bears some responsibility for the assault, and that party (or those parties) have the ability to compensate the victim, it may be possible to get a money judgment against them. In a civil lawsuit, the victim doesn’t have to prove the attack beyond a reasonable doubt. A jury only needs to be convinced that it is more likely than not that it happened. If a condominium complex allowed someone on the property that they should have known was a threat, or even a nursing home, school, after-school activity, employer, etc., the organization could be a contributing cause to the battery.
Maybe they failed to provide adequate security, hired without doing the necessary background or supervision, or didn’t supervise the staff that was doing thing they should have been able to prevent. All of those things could be negligence if whatever they did or didn’t do wasn’t reasonable. If a jury agrees, it could be a big judgment to compensate for the sexual assault.

Every case is different and speaking to a lawyer who has successfully won in both criminal and civil court is a good place to start to see if you have a claim.

Nothing contained herein should be considered formal legal advice or the formation of the attorney-client relationship. Call us for more information or to schedule an appointment. 305-665-3978.

You Don’t Need A Florida License, unless…

Posted on by M. Ladd

My phone has been ringing off the hook with people that have been charged for not having a Florida Driver’s License. It seems that police are mistakenly charging people with the criminal offense even when they don’t need a license.

If you are visiting Florida from another state or from another country your driver’s license issued out-of-state (or in the other country) will work just fine to allow you to drive here.

However, Florida requires that you get a Florida Driver’s License if you work in Florida or have kids enrolled in school here. If you are married to someone who works here or who has children enrolled in school here, you will need one too.

Florida Law allows thirty days from the start of work or from when they enrolled their kids in school to get licensed.

If you are charged and get a Florida License, then the State generally dismisses the charge because of your compliance. If you go back to your out-of-state/ country home and don’t come to court, you will probably get a warrant and could be arrested next time you come to Florida or possibly in any state.

Failure to have a Florida License when required is a second degree misdemeanor punishable by up to 60 days in the county jail and up to a $500 fine.

If you hire an attorney, it is possible to resolve the matter and explain that you aren’t required to have a Florida Driver’s License. If you have been wrongfully charged, call us, 305-665-3978.

I’ve included Florida statute 322.031 for your reference.

Flat Rate Evictions

Posted on by M. Ladd

We offer flat-rate eviction services for landlords that needed to start their evictions yesterday. The process of eviction takes attention to detail and needs to be done right or risk being fined for a wrongful eviction.

For our reasonable flat-rate attorney’s fee of $300 we start the process by sending the required three-day notice. If the tenant isn’t out or doesn’t pay within the three-days, we charge the second  $300 attorney fee and then we file the complaint and serve it with our private process servers. Generally, our process servers get the complaints served within 24 hours.  (Filing fees, process server fees, and postage usually costs about $200 and are billed separately.)

From there, the tenants have five days to move, pay, or we get the court order to force them out with the sheriff. Get started now before they owe you another day of unpaid rent!

Call today 305-665-3978.

*Amounts don’t reflect court filing fees, process server fees, and other associated costs. The typical eviction costs between $500-$750 with costs. Amounts discussed herein relate to actions for possession only. Pursuit of unpaid rent, after obtaining possession, is optional and may be performed on an hourly or contingency basis. Nothing contained herein should be considered legal advice and does not form the basis for an attorney-client relationship. Call today to inquire.

Threat against cop on Periscope app leads to arrest of West Kendall teen

Posted on by M. Ladd

A West Kendall teen has been arrested after authorities say he threatened to kill a Miami-Dade cop while chatting on the increasingly popular web broadcast service Periscope.

Jean-Michael Montenegro, 19, was charged this week with cyber stalking and written threats. He appeared in court Tuesday and was later released from jail on a $6,000 bond.

Periscope, an offshoot of the social-media app Twitter, allows users to broadcast live using their smart phones or tablets. Viewers can then chime in on a real-time chat that appears on the screen.

On April 8, a Miami-Dade police sergeant was being interviewed on a “department-sanctioned” broadcast from Goulds Park about recruiting future officers.

Detectives say Montenegro — with the user name “jeanmon600” — entered the Periscope chat and wrote “I’ll kill u sergeant.”

The sergeant, whose name was not released, said “he was in fear for his life and has since altered his living patterns,” Miami-Dade Detective Roy Rutland, of the Homeland Security Bureau, wrote in an arrest report.

Investigators scoured social media and identified Montenegro, who blurted out “I didn’t mean to threaten that guy!” when he was confronted, police said. Montenegro eventually confessed he was behind the threat, police said.

His defense lawyer, Matthew Ladd, said on Tuesday that Montenegro is innocent.

“The allegations do not support that any crime has been committed. We have entered a plea of not guilty and are investigating the allegations to determine why exactly the arresting officer decided to arrest Jean,” Ladd said.

Crimes involving social media — Facebook, Instagram and Twitter among others — have increased as the programs have become ingrained in daily habits.

Periscope, which is owned by Twitter, launched in March 2015. As its use has increased, so too have incidents involving the live-streaming app. In one particularly troubling case, an Ohio teen girl stands accused of live-streaming her friend’s rape. She was recently charged in connection with the attack and this week pleaded not guilty.

Last fall, a Lakeland woman was charged with DUI after she used Periscope to live-stream herself driving home while drunk.

Read more here: http://www.miamiherald.com/news/local/crime/article72674737.html#storylink=cpy

Fighting Over Fighting with Stalking Injunctions and Injunctions for Protection from Domestic, Dating, or Repeat Violence

Posted on by M. Ladd

It’s an all too common scenario. Neighbors or a couple get mad at each other. They fight. The cops are called. They don’t know who to arrest. Sometimes they arrest everyone involved. Sometimes they arrest just one person. Sometimes they don’t arrest anyone. In almost every case, the police will advise the parties that they have the option of pursuing an injunction for protection.

Injunctions for protection are civil judgments that give the police the ability to arrest the target if they violate any one of the many terms specified, including coming within 100 feet of the person that the injunction is supposed to protect. Injunctions are generally imposed on a temporary basis if a judge determines that the allegations warrant the immediate protection. A hearing is held after notice is given to the person who is the alleged aggressor after about a month. Evidence from both parties is allowed and a judge will decide the outcome. A judge can order that the injunction should stay in place for a few months, forever, or not impose it at all and dismiss the case. An important consideration is to decide if the allegations are being pursed by DCF or the State Attorney. Defending the injunction could jeopardize your standing in future cases.

Injunctions can be an effective tool in domestic cases to keep hot tempers from further boiling over into additional domestic violence incidents by keeping the parties at a safe distance. They also help get the State Attorney and DCF involved.

However, when it comes to neighbors, it gets a little trickier. It is unlikely that a judge would force someone to move out of their home in a non-domestic violence case. The more reasonable approach is for a judge to impose a smaller zone of restriction between the parties and to advise the aggressor to stay as far away from the other person as they can.

I’ve recently handled a few cases where the people seeking the injunction made really outrageous allegations. Fortunately, we won and the judge agreed with my clients and determined that there wasn’t a sound basis to impose the restrictions.

The take-away: steer clear of problem neighbors, and even sometimes that won’t be enough. Rather than subject yourself to the potential violations that can get charged as crimes, fight it! You can’t win it if you aren’t willing to fight it!

For an aggressive defense of civil stalking or domestic violence injunctions, call Matthew E. Ladd at 305-665-3978.

Nothing contained herein should be construed as formal legal advice or the formation of an attorney-client relationship. Consult an attorney if you are faced with the issues discussed herein.

Navigating the Federal Sentencing Guidelines

Posted on by M. Ladd

Crimes charged in Federal Court are subject to the onerous Federal Sentencing Guidelines.  Each crime is designated with an offense level that determines how many years in prison are in play for a minimal sentence.  Recent precedent gives the sentencing judge wide discretion in determining how much time should be served even when there are minimum mandatory sentences involved.

Crimes charged in Federal Court are subject to the onerous Federal Sentencing Guidelines.  Each crime is designated with an offense level that determines how many years in prison are in play for a minimal sentence.  Recent precedent gives the sentencing judge wide discretion in determining how much time should be served even when there are minimum mandatory sentences involved. 

In addition to the base offense level, there are factors that could increase or even decrease the guideline sentencing suggestion.  For example, if a gun was used or if someone was seriously injured, a typical drug case could be enhanced with a higher offense level.  The range of things that can increase a base offense level can be something as simple as obstructing the investigation to the fact that a private plane was used to import drugs. 

It’s also possible to decrease the offense level by doing anything from writing a letter of apology and taking responsibility for the offense, to showing that the role played in the offense was “minor” or even “minimal” in relation to the entire offense and the role played by others.  Someone who did not plan or orchestrate the crime should work for a reduction relative to the organizer.       

It’s also really important to know what kind of charge to accept before the plea agreement.  Accepting a charge like “importation” of drugs rather than to “conspiracy to import” may preclude the availability of arguing for mitigating role reductions.  The simple reason being is that if the offense charged is importation, and the person charged carried the drugs into the country, it is a lot harder to say he only had a minor role in the importation.   

However, if the offense is “conspiracy to import”, and the role was carrying the drugs into the country, the ability to argue that the importation was simply a minor or minimal part in relation to the entire conspiracy and relative to the role of others involved, it could shave off a few years of prison.   

Figuring out what is available and what is actually worth pursuing takes an experienced attorney to navigate through the Federal Code.  It seems overwhelming when faced with minimum mandatory sentences and maximum life sentences, but oftentimes, something can done to help reduce the total amount of prison time before sentencing. 

For more information on how to shave years off a sentence prior to sentencing call Coral Gables Federal Criminal Attorney Matthew E. Ladd for a free consultation, 305-665-3978.    

 

 

Juveniles Need to Act Fast to Avoid Being Charged As Adults

Posted on by M. Ladd

The State Attorney has the discretion to charge certain juveniles as adults. Defending juveniles requires a certain understanding of the options available. Usually, keeping the crime in juvenile court means the resolution or sentence will be more focused on therapy and rehabilitation rather than punishment.

Convincing the prosecutor that the case should stay in juvenile court instead of adult court requires acting fast to complete psychological evaluations, lie detector exams, and providing school records. The benefits of keeping the case in juvenile court include that the records will remain sealed (so there won’t be an adult criminal history), and a much lower exposure to confinement.

There are also programs that are available in juvenile court that aren’t available in adult court. Two such programs result in the charges being completely dropped after about a year if all the sentencing conditions are successfully completed.

Guaranteed dismissals are a lot better than being charged as an adult. Acting fast can make all the difference. If you or someone you know has been arrested and is a juvenile and want to try and keep their case in juvenile court, call Matthew Ladd, Esq., for a free consultation, 305-665-3978.