Articles Posted in Firearm Crimes

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Darth Vader of Death Star, Space, 45 years old, was indicted last week in the Middle District of Florida for allegedly violating the RICO act, Conspiracy, Committing Acts of Terrorism Transcending National Boundaries, Murder, loitering and prowling, and finally, wearing a mask on a public way. Mr. Vader has long been thought to be a vital cog in the “Dark Side” organization but has to date avoided capture or criminal charge, instead going unscathed while various ranking storm trooper underlings faced a variety of criminal charges including trespass and drunk and disorderly conduct. While the Federal Bureau of Investigation and the United States Attorney’s Office have remained tight-lipped with respect to the evidence against Vader, many believe this could be it for the Dark Lord.

While it may seem to many a slam-dunk to earn a conviction against Mr. Vader, Mr. Vader’s legal counsel doesn’t think so. When asked, Mr. Vader’s lead defense counsel, Tampa criminal attorney Jason Mayberry indicated that while it may indeed be more difficult to defend against the loitering and prowling charge, it may prove to be an uphill battle in proving the terrorism charge, given a lack of eyewitnesses to Mr. Vader himself ordering or committing any act of terrorism under 18 USC 2332b. With respect to a potential conspiracy charge under 18 USC 371, Mayberry points out that there are no known remaining witnesses to attest that there was agreement to achieve an unlawful objective, that Mr. Vader knowingly and voluntarily participated in the conspiracy, and that Mr. Vader committed an overt act in furtherance of the conspiracy. United States v. Brenson, 104 F.3d 1267 (11th Cir. 1997); United States v. Suba, 132 F.3d 662 (11th Cir. 1998); United States v. Hansen, 262 F3d 1217 (11th Cir. 2001).

As to a murder charge for the death of Obi-Wan “Ben” Kenobi, Mayberry cites a claim for self-defense within one’s home. According to Mayberry, “it appears clear that Mr. Kenobi entered Mr. Vader’s home with the intent to use deadly force against him. It was Mr. Kenobi who was committing the crime of burglary against Mr. Vader, who was simply using deadly force to defend himself and his friends against the deadly force planned against him by Mr. Kenobi and his lightsaber. Furthermore, there appears to be an argument for a motion to dismiss for lack of jurisdiction in the middle district.” To Mayberry’s point, there are no known treaties between the United States and the Death Star, nor does there appear to be any enabling statutes, akin to the United States Coast Guard patrolling international waters for narcotics, in effect. A quick review of past police reports find that Obi-Wan Kenobi does have a history of brutally attacking Darth Vader leading to severe injury.

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A St. Louis County grand jury chose not to indict Officer Darren Wilson for the shooting death of St. Louis teen Michael Brown. After nearly three months, the grand jury comprised of seven men and five women, nine white and three black heard evidence from 60 witnesses and met 25 times. St. Louis County Prosecuting Attorney William P. McCulloch cited inconsistent witness testimony, thereby making it difficult to present a clear picture of what occurred in the 90-second confrontation between Officer Wilson and Mr. Brown. The grand jury considered charges ranging from first-degree murder to involuntary manslaughter, all before failing to find that probable cause was established to return a true bill of indictment to charge Officer Wilson.

To lead in, any loss of life is tragic. No one wins in this situation. A young man lost his life, his parents lost a son, and a police officer has possibly lost a career and will have to live with the fact that he had to use lethal force while on the job. In this case, at least from what was visible, due process was performed and the grand jury failed to return a true bill of indictment after having been presented with a considerable amount of evidence over a very long period of time. Article I, Section 16 of Missouri’s Constitution requires that 9 of 12 members on a grand jury find that there is probable cause that a crime has been committed in order to return a true bill of indictment.

Unlike a standard jury trial, a grand jury is performed without the presence of a criminal defense attorney and the proceeding is not open as a standard trial is. Using the Federal Rules of Criminal Procedure (“FRCP”) as a guide can better explain how a typical grand jury system works. Though there is no enumerated quorum for a grand jury to convene, FRCP 6(a)(1) requires between 16 and 23 members of a grand jury in order for the grand jury proceeding to move forward. In a grand jury proceeding a Prosecutor will call witnesses and present evidence before the panel in an effort to prove by a probable cause standard (more probable than not) that a crime has been committed. Unlike a jury trial, these proceedings are conducted in secret with the only individuals present being government attorneys, the witness being questioned, a court reporter, and possibly a translator. FRCP 6(d)(1). There is no defense attorney to represent the accused’s interest or to make timely objections to otherwise inadmissible evidence. For instance, it is proper to present hearsay evidence to a grand jury. United States v. Calandra, 414 U.S. 338 (1974). Of course the hope is that the Prosecutor is ethical enough to vet the garbage hearsay from that that is most assuredly reliable, if there is such a thing as reliable hearsay. Once all evidence has been presented, the grand jury retires to a deliberation room, much like a jury would in a jury trial, to determine whether enough of them believe probable cause has been established. In Missouri, had 9 of 12, or 75% of them believed probable cause was established, they would have returned a true bill of indictment. In the Federal system 12 jurors must believe probable cause is present to return a true bill of indictment. FRCP 6(f). If an indictment is issued it will likely be under seal until the defendant can be brought in to custody.
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Oscar Pistorius, renowned Paralympic sprinter was sentenced yesterday to five years in a South African prison for the shooting and killing of his then girlfriend, Reeva Steenkamp. Mr. Pistorius was found not guilty of a more serious murder charge he stood trial for earlier this year but was convicted of culpable homicide for shooting Ms. Steenkamp several times in the middle of the night in what Mr. Pistorius claims was self defense out of fear that one had intruded into his home. South African prosecutors argued for a minimum of 10 years as a prison sentence for Mr. Pistorius but were unsuccessful in their bid for the heavy handed punishment. Conversely, Mr. Pistorius’ defense team argued for community service hours and house arrest. Judge Thokozile Masipa seemingly split the difference the two sides were arguing for by imposing a five-year prison sentence of which only 10 months are expected to be served in the Kgosi Mampuru prison with the balance of his time to be served as a house arrest sentence, assuming the requisite negotiation with prison officials is successful.

All in all, despite how one may feel about the outcome of the Pistorius case, his lawyers appear to have done a fine job in their representation of Mr. Pistorius. As a threshold charge, Mr. Pistorius was charged with premeditated murder, a comparable charge to first-degree murder in Florida. As a general rule, a generic first degree murder charge requires proving the same elements as Florida’s first degree murder statute in that someone is dead, that death was caused by the actions of another, and those actions were premeditated. Premeditation means killing after a conscious decision to do so. The decision must be present in the mind at the time of the killing, however in Florida the law does not detail an exact period of time that must pass between the formation of the premeditated intent to kill and the actual killing. All that is needed is that time period be long enough to allow reflection by the killer and that the premeditated intent to kill is formed before the killing. The premeditation is almost always where first-degree murder charge fails, and based upon the facts of the Pistorius case, it is easy to see how there would be reasonable doubt of premeditation versus gross negligence or recklessness, both mindsets insufficient for a first-degree murder charge.
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Kosovo born and now Tampa Bay area resident Sami Osmakac was found guilty last week of the federal crime of attempting to use weapons of mass destruction and knowingly possessing a firearm not registered to him in the National Firearms and Transfer Record. Osmakac’s case received national attention in 2012 when he was indicted after posting videos on YouTube, declaring his intention to blow up highly populated Tampa areas including Hyde Park and Ybor City and then subsequently purchasing non-functioning weapons from undercover FBI agents. According to Tampa news reports, Osmakac claimed to want to set off a car bomb near Macdinton’s Irish Pub in south Tampa as he claimed the area of Macdinton’s is a stomping grounds for sinners and homosexuals. Osmakac cited revenge for the deaths of Osama bin Laden and Anwar al-Awlaki as his rationale for his planned destruction. In spite of his Tampa Federal criminal lawyer’s argument at trial that Osmakac was an easy target for an overzealous law enforcement agency and that he was entrapped as a result, the Tampa federal jury came back guilty on both counts in the 2012 indictment.

While Osmakac wasn’t charged under a terrorism related statute, what he was indicted for is commonly used when one is suspected of committing or attempting to commit a terrorist act on American soil. Specifically a charge that one has attempted to use a weapon of mass destruction requires the Federal government to prove the following:

1. That the Defendant attempted to use a weapon of mass destruction against any person or property within the United States;

2. that the Defendant did not have lawful authority to use the weapon of mass destruction; and

3. the mail or any facility of interstate or foreign commerce was used to further the offense or the property was used in interstate or foreign commerce or in an activity that affects interstate or foreign commerce or any perpetrator traveled in or caused another to travel in interstate or foreign commerce to further the offense or the offense, or the results of the offense, affected interstate or foreign commerce or the offense would have affected interstate or foreign commerce.
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Video of former Tampa Police Captain Curtis Reeves, Jr. shooting and killing local man Chad Oulson will be viewed in open Court according to Pasco County Circuit Judge Pat Siracusa. Reeves Jr. has been charged with second-degree murder for his actions. Several media outlets have requested footage of the video. Pasco County Prosecutors sought a Judicial order prior to turning over footage of the alleged second degree murder citing Florida Statute 406.136, a statute that makes it a third degree felony to turn over footage of a “killing of a person” to a third party not enumerated within the statute. The Statute was created to protect the families of victims from further emotional damage.

In this instance, the Florida statute’s restrictions tend to conflict with Section 21 of Florida’s Constitution. Section 21 states, “[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” This Florida Constitution clause is in accord with the Sixth Amendment of the United States’ dictate that a defendant is entitled to a “public trial by an impartial jury.” Traditionally this clause has been interpreted to allow for spectators to observe Court proceedings unless the excess publicity would serve to undermine the defendant’s right to due process.” Sheppard v. Maxwell, 384 U.S. 333 (1966).
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Tampa man, Darrell Strong was charged with discharging a firearm in public, aggravated assault with a firearm and burglary for the purpose of a battery after firing at another man in the parking lot of the Tampa Home Depot located on Dale Mabry Highway. According to police reports, Raymond Lindstrom of New Port Richey was leaving the parking lot of the Home Depot and drove too closely to Strong’s wife’s vehicle, making it difficult to pass safely. As Lindstrom and Strong’s wife passed, a verbal altercation occurred through each of their windows prompting the intervention by Darrell Strong. Darrell Strong and his friend John Christian confronted Lindstrom, who remained in his vehicle. An argument escalated and eventually a fight broke out as Lindstrom was still in the driver’s seat. Lindstrom ultimately drew his concealed firearm leading to Strong and Christian attempting to take it from him. Strong and Christian then ran to their vehicles to retrieve a firearm as Lindstrom attempted to leave the parking lot but had to drive back by the two men due to Lindstrom’s lane dead ending. As Lindstrom drove back by the two men, Strong fired two shots at Lindstrom. Police estimated approximately 12 people were between Strong and Lindstrom when the shots were fired.
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Certain selected residents of Orange County, FL are potential jurors for the First Degree Murder trial of accused Police Officer killer Dontae Morris. Morris is scheduled for trial in the murders of Tampa Police Officers Jeffrey Kocab and David Curtis after the officers pulled over a car Morris was in three years ago. At the time of Morris being pulled over he was wanted on a warrant out of Jacksonville for a worthless check. Upon his detainer he fired upon and killed Officers Kocab and Curtis. After shooting the officers Morris fled on foot and a manhunt ensued until he ultimately gave himself up at a local Tampa criminal attorney’s office. Due to the nature of the murder charge, Morris could face the death penalty if convicted should a jury ultimately elect to recommend death and the trial Judge oblige their wishes. For now, an Orange County jury will be selected to try the Hillsborough County case. A looming question on the mind of many is why pick a jury in a different jurisdiction?

Due to the subject matter of this trial leading to much media attention and despite the crime occurring in Hillsborough County, the jury will be selected in Orlando and ultimately sequestered in Tampa. Florida’s Constitution, under Article I, Section 16, guarantees that an individual accused of committing a crime shall receive an impartial trial in the county wherein the crime was allegedly committed. As support for this guarantee, Florida Rule of Criminal Procedure 3.240 allows as a safeguard, for the Defendant or the State Attorney’s Office to move for a change of venue. As a basis for this motion the moving party will allege that a fair and impartial trial can’t be had in the county where the crime was committed and as such the trial or at least the jury selection should be moved to another county in the hope that a pool of individuals less familiar with the facts can be found. Florida criminal statute 910.03 dictates that upon a court ordering a change of venue, priority must be given to any county that closely resembles the demographic composition of the county wherein the original venue would lie. Using the Morris case (see also the Casey Anthony case) as an example, the closest county offering the most purported safety in distance with the closes demographic makeup to Hillsborough is Orange County, likely because of the cities of Tampa and Orlando being somewhat similar demographically.
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Two men are facing a Federal criminal complaint out of the Northern District of New York for allegedly hatching a plot to create an X-Ray gun capable to shooting lethal doses of X-Ray radiation. Alleged members of the Ku Klux Klan, Glendon Scott Crawford, 49, of Galway, NY and his buddy Eric J. Feight, 54, of Hudson, NY have been arrested and charged with the Federal crime of conspiracy to provide material support to terrorists in violation of 18 USC 2339A. If convicted of the charges, Mr. Scott and Mr. Feight face up to 15 years in the Federal Bureau of Prisons and a large fine. The essence of the criminal complaint is that these two “gentlemen” schemed to create a mobile, remotely operated, radiation emitting device capable of killing targets from afar with a mega dose of radiation. Their alleged intent was to blast unknowing victims with said radiation, only to have their victims fall ill days later and eventually die. Despite their dedicated intentions, at no time was their cartoon ray gun operable or even capable of fulfilling their double secret squirrel plot according to authorities.

Is the KKK really involved? If so it looks as if at least some of them have now graduated from wearing white uniforms that look like Casper’s redneck friend Crisper and hurting people, to generally screaming at rallies in cities, to now plotting attacks with hi tech laser tag guns? Can anyone fill me in here? I’m proud to admit that I don’t knowingly know anyone in the KKK so I can’t attest to the intelligence level of the group as a whole or any of them as individuals, but this seems to me like they’re grasping at straws a bit. Ray guns? Seriously? Dumb, dadumb, dumb, dumb… Whatever bobs their bobber I guess, but there will likely be consequences to thinking and behaving like fools.
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If you’ve previously read our blog, you’ll know that it is an effort to provide an interesting read on funny or hot button topics from the perspective of a Tampa criminal lawyer. Our hope is that we can bring some knowledge on the law while also giving a perspective of how a case is viewed from our side of the fence. Today I’ll break from that trend as there is nothing funny about the acts of Dzhokhar Tsarnaev and his older brother. These individuals robbed our Country and one of our finest cities of a sense of security while taking with that the lives and quality of life of innocent bystanders supporting something so pure as the challenge of the Boston Marathon. Those of us that practice Federal criminal law stand before our Judges every month in an effort to introduce them to an individual as opposed to a case number. We squeeze every bit of good in a person onto a sentencing memorandum in the hope that we can shave off a fraction of the person’s sentence. As a general rule, within each of our clients there is some good and it can be argued that though the individual may be before a particular judge on a particular day, the act for which they are there is not the sum total of who the person is. With the freshness of this massacre as it currently stands, it would be tough to make that argument here. Some will demand Tsarnaev’s head on a stake, some will beg for mercy due to his age. Both are entitled to their opinion. This great country and its resolve is to thank for the ability to own your opinion.

As it stands on the date of this blog, Tsarnaev has been charged by criminal complaint in Federal Court. Rest assured a Grand Jury will be empaneled on this case and they will provide an indictment and this case will move forward based on that. As for now, Tsarnaev is charged via complaint with “Use of a Weapon of Mass Destruction” under 18 USC 2332(a) and “Malicious Destruction of Property Resulting in Death” under 18 USC 844(i). Someone died as a result of the deeds of these brothers. As with any Federal Case one of the first steps in sentence calculation is to take a look at the Federal Guidelines to get a rough idea as to where the potential sentence may stand. Going in order, the charge of “Use of a Weapon of Mass Destruction” is most likely to be guided under Federal Guideline 2M6.1. Immediately because a little boy died, this guideline could call for a cross reference with Guideline 2A1.1 for first degree murder as the death was most definitely caused intentionally or knowingly. The base offense level for that, regardless of criminal history is 43, which equates to life. However, under 2M6.1(c)(1) because a higher offense level could be built using 2M6.1 by taking the base offense level of 42 and adding 4 levels for death, the first degree murder cross reference doesn’t happen. Generically, for Tsarnaev’s use of a weapon of mass destruction, he’s looking at a potential total offense level of 46 which would equate to life. As for the “Malicious Destruction of Property Resulting in Death” the applicable guideline is 2K1.4. Again there calls for a first degree murder cross reference under 2A1.1, this time applicable as that guideline is higher at 43.
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Attorneys for the State of Florida and alleged Tampa Police Officer shooter Dontae Morris continue to quest to pick a jury for Morris’ upcoming murder trial for the death of Rodney Jones outside of a Tampa nightclub. Morris’ name may sound familiar as he is the suspect accused of killing Tampa Police officers Jeffrey Kocab and David Curtis on June 29, 2010 after a routine stop of his girlfriend’s vehicle. Because of the media coverage of the death of the two officers, Morris’ jury selection has been moved to Orlando in an effort to find a jury pool less familiar with the allegations in the hope of finding a jury of individuals unbiased and unfamiliar with this case. Though this practice has been used for years, the Tampa criminal lawyers at The Mayberry Law Firm have doubts as to its effectiveness in our day of modern technology.

In any high profile criminal trial, be it Casey Anthony and the accusation of murder for the death of her little girl, Jodi Arias and the accusation of murder for the death of her boyfriend or anything involving the death of a local police officer there gives the rise of doubt that a jury free from bias can be seated in the county holding jurisdiction over the allegations. Tampa criminal lawyer Jason Mayberry blogged in May 2011 about this very issue as it concerned the jury selection for Casey Anthony held in Pinellas County. Within that blog our firm expressed doubt that the change of venue protection still legitimately exists.

Article I, Section 16 of Florida’s Constitution guarantees an accused will receive an impartial trial in the county holding jurisdiction over the criminal allegation. In conjunction to that Constitutional guarantee, Florida Rule of Criminal Procedure 3.240 provides that either the State Attorney or the Defendant may move the Court for a change of venue, alleging that a fair and impartial trial cannot possibly be had in the home county of jurisdiction. Florida Statute 910.03 says that in ordering a change of venue for jury selection the Court must “give priority to any county which closely resembles the demographic composition of the county wherein the original venue would lie.” In this instance it appears that Judge Fuente feels that Orange County satisfies the dictate of 910.03.
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