Articles Posted in Drug Crimes

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In nearly every Federal drug charge I’ve handled in Tampa, my client has been charged as part of a Federal drug conspiracy. Depending on my client’s role or position within the alleged conspiracy, he or she is often approached, through me, to cooperate with the United States Attorney’s investigation in an attempt to bolster their Federal prosecution of co-conspirators or to seek information on other conspirators higher up the in the criminal organization. Depending on the stage of the investigation and very likely my client’s role, the Feds may defer on seeking a Federal Indictment against my client. Considering the Indictment system of charging a crime is a mechanism meant to protect the suspect from unsubstantiated prosecution, there could be risk in waiving the right to a Grand Jury. That said, there could be benefit in waiving that right as well…

Federal Rule of Criminal Procedure 7 states that an offense other than criminal contempt must be prosecuted through a Grand Jury Indictment if the punishment for the offense is death or by jail for longer than one year. In other words, we the people have the right to have a Grand Jury hear charging evidence against us in all Federal felonies. Under Federal Rule of Criminal Procedure 7(b) a defendant may waive a Federal Indictment and be charged by an Information so long as that waiver is made in open court and the waiver of the indictment is made after the defendant has been advised of the nature of the charge against him or her and has been fully advised of their rights. This is generally accompanied by a written waiver of a Federal Indictment that is then filed with the applicable Court.
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Polk county resident David Scott Schultz, 32, delayed his arrest last week when Polk County deputies attempted to serve a search warrant on his residence for suspicion that Shultz was using his home as a marijuana grow house. According to deputies, after knocking on Shultz’s door and speaking with him he refused to allow them in. After some time went by deputies smelled the odor of marijuana and ultimately learned that Shultz simply wanted to smoke one last joint before being taken in to custody. Shultz eventually opened the door and was taken in to custody without incident. Shultz was arrested on charges of maintaining a dwelling for drug manufacturing, cultivation of cannabis, possession of cannabis with intent to sell and possession of drug paraphernalia.

Mr. Schultz has pretty run of the mill Florida drug charges though he could benefit from the help of a Polk county criminal lawyer. Shultz’s charge for being in possession of a dwelling used for drug manufacturing is no doubt his biggest concern when defending against these charges. This Florida crime is a second degree felony punishable by up to 15 years in the Florida Department of Corrections. Florida statue 893.1351(2) makes it a crime for a person to knowingly be in actual or constructive possession of any place, structure, or part thereof, trailer, or other conveyance with the knowledge that the place…. will be used …. for the sale of a controlled substance, as provided in s. 893.13; or for the manufacture of a controlled substance intended for sale or distribution to another.
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The vast majority of the time if one is charged with a Federal crime they are very likely subject to a considerable amount of incarceration. In some situations it’s possible for a hard working Federal criminal attorney to try their client’s case and earn an acquittal. Unfortunately for a defendant, Federal criminal cases tend to be well investigated and by the time the individual is charged, the United States Attorney has a nearly airtight case with which to work. But what about the minor crime committed by one with a squeaky clean criminal history where the crime is seemingly victimless? State criminal courts have pretrial diversion but do our Federal courts? Surprisingly to some, the answer is yes. So what does it take to get into Federal Pretrial diversion?

As with many facets of a Federal criminal charge, the United States Attorney handling the case has a great amount of discretion as to whether to offer diversion. Should you be lucky enough to have a reasonable and compassionate US Attorney, you must still meet the criteria found within the United States Attorney Manual section 9-22.100. In order to qualify for Federal Pretrial Diversion the US Attorney must choose to divert you should you not: have two or more prior felonies, be a public official or former public official accused of an offense arising out of a violation of the public trust, accused of an offense related to national security or foreign affairs, be accused of an offense that under existing department guidelines should be diverted to the State criminal court system. Should you be lucky enough to get into diversion you will be there no longer than 18 months should you complete the program and will still be required to pay any restitution owed.
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As criminal attorneys if we’ve heard it once, we’ve heard it a million times, “the defendant spontaneously admitted to the crime and also told me who is responsible for John F. Kennedy’s assassination.” Ok, maybe not to that extent, but I can’t tell you how many times I’ve read police reports, be it a DUI allegation or a Federal Wire Fraud report, where there is language that my client made admissions. Obviously many people get scared when they’re arrested and sing like canaries, but what about those that may be a little more “experienced” with the system and would never utter a peep to a police officer? What about those instances where a person “spontaneously” told the officer during a traffic stop that they have 14 tons of cocaine stashed in their garage 40 miles away? How can we as attorneys, or a jury really know what happened or what was said between the officer and the defendant without hearing a recording of the conversation?

I recently tried a Federal drug case where a DEA agent recorded in his written report that my client made certain statements that could be viewed as admissions and he later testified as to the same. Despite working for a Federal law enforcement agency with more than enough resources to buy recording equipment, this conversation was not recorded. As an attorney, without the luxury of any audio or video recordings to review, all you can do is try to chip away at the Agent or Officer for not making an effort to record despite the means to do so and attempt to the point across that one who is investigating a case certainly has an interest in the outcome and therefor has some bias. Unfortunately, often a showing of bias from the standpoint of a law enforcement officer and the fact that he didn’t record the conversation isn’t enough to combat Big Badge’s testimony. This happens every day in Courtrooms all across the country and the only way to combat it is to attempt to cross examine the witness and hope that they are taking their oath seriously. Sometimes they do, sometimes they don’t. I’m not alleging that this agent wasn’t truthful in his testimony, however had the conversation been recorded my job would have been that much more difficult as it’s a hell of a lot harder to impeach a recorded conversation than a conversation that’s retold by a witness.
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Ask any Tampa Federal Criminal Lawyer how they feel about Federal drug sentencing and I have little doubt the response you receive would be a groan and a look of disgust. Federal drug sentencing, for whatever popular and illusory reason the Federal Sentencing Commission chooses to hang their hat on, has been and is outrageous. For every crime there must necessarily be some kind of punishment otherwise the system is useless and we can cue anarchy. However, when one with little criminal history and no real ties to a cartel or gang takes a shot to make five times his yearly wage for a noble albeit illegal reason and ultimately is sentenced to a 10 year minimum mandatory prison term, have we really achieved anything? Should a drug sentence really be higher than a crime of violence or a sex crime against a minor? It doesn’t pass the smell test but it happens all the time. Title 21 of the Federal Criminal code details minimum mandatory sentences and it has been a leverage point of Federal Prosecutors since its inception.

Not only can a defendant be charged with a violation of Title 21 that calls for a mandatory minimum prison sentence, in certain instances the defendant’s sentence potential or mandatory minimum be increased because of a criminal history to make a minimum mandatory completely exorbitant. If the US Attorney’s office pops your man with a nice little 851 enhancement you are now staring down the barrel of a potential of a 20 year minimum mandatory or mandatory life sentence depending on the number of prior drug felonies he has. If the defendant was facing a 5 year minimum mandatory he is now looking at 10 and if there is no minimum mandatory, his statutory maximum increases. You can run but you can’t hide from the 851… All for one prior drug felony. Granted this enhancement is not automatic but it is wholly discretionary for the Federal Prosecutor. Depending on which Prosecutor is driving the bus, you could be in for a bumpy ass ride. This enhancement isn’t even inclusive of a Career Offender enhancement, and animal that has been criticized as not being based on empirical data by the Supreme Court in Kimbrough v. US, 552 U.S. 85, 109-110 (2007). When one is saddled with both an 851 and career offender enhancement his Federal criminal lawyer will earn a few more gray hairs.
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Tennessee man Jerimiah Clyde Hartline, 19, was arrested on suspicion of grand theft, driving without a license and hit and run for stealing an 18 wheeler, crashing it, and causing a giant traffic jam in Temecula, California earlier this month. First off, sweet name. Only a guy with a name like this from the hills of the dirty south would have the presence of mind to commandeer a big rig to prevent a zombie attack. Excellent thinking Clyde. No, not really as this has Florida written all over it. Meanwhile, back at the ranch… According to the California Highway Patrol, Hartline informed authorities that he stole the truck from a weigh station in Rainbow, California because he was sure zombies were hot on his trail. Further, despite his high speed driving and swerving all over the road, the zombies wouldn’t shake loose eventually causing Mr. Hartline to crash the truck and injuring many. As a result of the zombie attack and subsequent crash, all four lanes of the interstate were closed for several hours while cleanup crews cleared the truck from the road and corralled the two loads of strawberries on board. According to the news report it is “unknown whether Hartline was under the influence of drugs or alcohol.”

Yes, it would be a mystery as to whether Mr. Hartline was sober or slightly influenced by an “extracurricular” substance… Man, I wonder if he was? Time will tell with a potential DUI. As for now, we know he’s getting charged with grand theft. If I were a betting man I’d estimate he will be charged with DUI with serious bodily injury as well.
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18-year-old Penelope Soto was sentenced to 30 days in jail for contempt of court after flipping Circuit Judge Jorge Rodriguez-Chomat the bird on Monday during her first appearance hearing. Oddly enough Soto was arrested and before Judge Rodriguez-Chomat for a first appearance on a possession of a controlled substance charge where he was trying to establish a lower and reasonable bond for her. When the good Judge inquired as to the value of the jewelry Soto possessed it is reported that Soto stroked her hair and laughed at Judge Rodriguez-Chomat in a snarky fashion. To this Judge Rodriguez-Chomat remarked, “it’s not a joke, you know, we’re not in a club now. We are not in a club, be serious about it.” Soto replied, “I’m serious about it, you just made me laugh. You just made me laugh, I apologize. It’s worth a lot of money.” When Judge Rodriguez-Chomat inquired further as to the actual value of the jewelry Soto replied, “like Rick Ross. It’s worth money.” Not understanding Soto’s reference, Judge Rodriguez-Chomat asked if Soto was on drugs and things seemed to turn downhill from there. Judge Rodriguez-Chomat set a $5,000 bond and said “bye, bye” to which Soto sniped “adios.” Annoyed, Judge Rodriguez-Chomat summoned her back to the podium and increased her bond to $10,000 and again sent her on her way. But the altercation would not be complete without Soto flipping Judge Rodriguez-Chomat the bird and blurting “f*ck you” on her way out the door. For this Judge Rodriguez-Chomat yet again brought her back and issued her a 30 day criminal contempt of court sentence.

First and foremost the first thing I and the Tampa criminal lawyers in my firm impress upon our clients is to be mannerly in front of the particular presiding Judge on their case. Alienate the Judge and your difficulties are compounded ten fold. In other words, don’t piss off the person that could eventually sentence you or approve of a plea deal negotiated between your Tampa criminal attorney and the State. Penelope Soto screwed up. Not only is a $5,000 bond reasonable for a third degree felony, Soto will now instantly begin serving her contempt sentence. Unlike civil contempt where a Court’s ruling is made and ignored, direct criminal contempt is governed by Florida Rule of Criminal Procedure 3.830 and offers very little due process. Criminal contempt allows for summary punishment when the contempt is performed in the presence of the Court. The Judge will then allow an opportunity for the Defendant to show cause as to why they shouldn’t be sentenced and depending on the cause, will impose sentence immediately and without a trial.
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A Jacksonville Beach, Florida mother pled guilty in Duval County Circuit Court on January 30th to four counts of Child Neglect. Dalina Nicholas, 36, is accused of repeatedly selling sex with her 6-year-old daughter to drug abusing and homeless men in exchange for drugs and money to support her own drug habit. Nicholas, originally facing a sexual battery charge has agreed to testify against those men alleged to have sexually abused her daughter in exchange for that sexual battery charge being dropped. Sexual battery under Florida Statute 794.011 as alleged against the other defendants and likely as initially alleged against Nicholas is a Capital Felony with the requirement to register as a Sexual Predator. Generally Capital felonies are punishable by death. However, in Capital cases for rape of a woman or child not involving death, execution has been ruled to be unconstitutional by the United States Supreme Court through their decisions in Coker v. Georgia, 433 U.S. 584 (1977) and Kennedy v. Louisiana, 554 U.S. 407 (2008). As you can imagine, despite the terrible allegations against her, Nicholas has dodged a certain life sentence in her agreement to cooperate with the State. In all candor I believe this is a deal any Tampa criminal lawyer would advise his client to enter into should the implicating facts be overwhelming.
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A Minnesota State Court of Appeals recently ruled that a two wheeled motorized transit machine called a “Segway” was more like a pedestrian than a “vehicle” for purposes of Minnesota’s DUI law, thereby throwing out a DUI charge against Mark Greenman, a two time contestant of the Segway DUI challenge. The Minnesota court ruled that a Segway, having a top speed of only 15 miles per hour, makes it much more like a human being and their movement than that of a car or other device considered to be a vehicle under Minnesota law. A common misconception just about anywhere you go is that one cannot get a DUI on a “device” that isn’t propelled by some type of motor, be it gas or electric. Because DUI is most often prosecuted in a State court, laws vary by state and some probably do adopt this notion. Florida may be a bit vague on this issue. Our Tampa criminal attorneys have long felt that Florida is very much a “Police State,” enacting and enforcing laws that reap a financial benefit for the State more so than those laws aim to punish. In Florida one can get a DUI on a bicycle, State v. Howard, 510 So.2d 612 (Fla. 3d DCA 1987), a lawnmower, while simply sitting in your car with keys nearby, on an ATV, or any other “device” considered a vehicle. Rest assured the definition is a broad one so as to encompass as many objects into the “vehicle” umbrella as possible. So what about a Segway? Electric Personal Assistance Mobility Devices are described in Florida Statute 316.003(83) as essentially being segways. Further, this section explicitly excludes them from being a “vehicle,” an issue very relevant for purposes of DUI in Florida. From the look of it, if the segway fits the description under this Statute, you likely are excluded from a DUI charge. Where this could get sticky is if there is a tandem wheel segway produced or ridden and the thing goes over 20 miles per hour.

In Florida in order to prove that one was driving under the influence contrary to Florida Statute 316.193, it must proven that the following two elements existed beyond a reasonable doubt:

1. Someone drove or was in actual physical control of a vehicle.

2. While driving or in actual physical control of the vehicle, the individual was either;

a. under the influence of alcoholic beverages and/or a chemical substance and/or a controlled substance to the extent that his or her normal faculties were impaired.

or
b. had a blood/breath-alcohol level of .08 or more grams of alcohol per 100 milliliters of blood/210 liters of breath.
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28 year old former Tampa Bay Rays player Elijah Dukes was arrested again Monday night on several outstanding warrants for failing to appear in court for past criminal charges. Dukes, a former major league baseball player with incredible talent but an inability to stay out of a criminal courtroom was also arrested on a driving while license suspended, cancelled, or revoked charge. Dukes is a native of Tampa and last played in the big leagues in 2009 for the Washington Nationals. This arrest is one in a long line dating from 2003 and ranging from domestic violence and obstructing a police officer to contempt of court arising from an alleged failure to pay child support.

Because Dukes is facing a new charge for driving while license suspended, cancelled, or revoked any relatively experienced Tampa criminal lawyer could safely presume that Dukes was pulled over for a routine civil traffic violation or officers ran his license plates revealing the registered owner, Dukes, had a suspended license and recognizing that the driver fit Dukes’ description. Either is a valid way for police to detain a Florida driver. Under Florida Statute 322.34(2), any person who is driving in Florida and knows that their driver’s license is cancelled, suspended, or revoked is guilty of a second degree misdemeanor on their first offense and first degree misdemeanor on their second offense. A third of subsequent conviction under 322.34(2) is a third degree felony.
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