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Over the last several decades, the accelerated development of DNA testing and other forensic technologies has resulted in Florida prosecutors pursuing charges for many formerly “cold cases.” The statute of limitations in Florida for sex crimes can be extended indefinitely under certain circumstances. As a result of these laws, charges may be brought against alleged sexual offenders years or even decades after the offenses occurred. The Florida Court of Appeal recently affirmed the conviction of a man who was arrested in 2009 for a murder and sexual assault that he allegedly committed in 1988.

The victim from the recently decided case was found dead in a Florida field in 1988. She appeared to have been sexually assaulted before she died. Investigators found a suspect’s fingerprints at the scene of the crime, as well as biological evidence under the victim’s fingernails. Although evidence was collected after the 1988 murders, no suspect was identified, and the case went cold. In 2009, detectives investigating the cold case ran the fingerprints and DNA evidence from the 1988 crime scene through updated databases and found that the defendant’s DNA and fingerprints matched the evidence from the crime scene.

The defendant was arrested and charged with murder and sexual assault. The murder charges were dismissed because the statute of limitations had expired; however, Florida law extends the statute of limitations for sexual assault charges resulting in a death indefinitely, and the defendant was ultimately convicted of the sexual assault charge and sentenced to life behind bars. The DNA and fingerprint evidence were the only pieces of physical evidence offered against the defendant at trial.

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kitna-238x300 Former Florida Gators backup quarterback Jalen Kitna (“Kitna”) was arrested in late November for two counts of promotion of child pornography and three counts of possession of child pornography, both violative of Florida Statute 827.01.  While unfortunately it is not uncommon for young collegiate athletes to find trouble with the law, this is the first arrest that I am aware of, involving a non-hands on sex crime involving an athlete at a reputable football program.  According to news outlets, likely basing their information on a press release from the Gainesville Police Department (“Gainesville PD”), Gainesville PD and an Internet Crimes Against Children (“ICAC”) task force served a search warrant on Kitna’s residence after Gainesville PD received a tip from the National Center for Missing and Exploited Children (“NCMEC”) indicating that a discord member account linked to Kitna had shared two images depicting child sexual abuse with another discord member.

Further investigation found that the images were likely shared from Kitna’s residential address, using a discord account likely belonging to him.  Upon law enforcement interviewing Kitna, he is alleged to have admitted to sharing the images but thought they were legal because they were on the internet.  Kitna indicated that he only realized his folly when the discord member he shared the imagery with reacted negatively to Kitna’s actions, ultimately then receiving notice that his discord account had been cancelled due to violating company policy.  Kitna’s phone was seized during the time of the interview only to reveal three additional images depicting child sexual abuse, such images likely comprising the three possession charges.

Despite Kitna’s case being in the media due to his status as a University of Florida quarterback, the course of the investigation leading to present day is really very common in an allegation involving a sex crime involving child pornography.  Our firm handles a considerable amount of child pornography allegations and it is not uncommon for an individual or internet service provider (“ISP”) who has either received child pornography or in the case of an ISP, to detect file names commonly affiliated with child pornography, to make a report to the NCMEC.  NCMEC is an organization aimed and ceasing the exploitation of children and aiding in law enforcement’s prosecution of child pornography crimes.  Once NCMEC verifies the tip, they generally pass the tip along to the special victim’s unit of the law enforcement agency with jurisdiction (In this case Gainesville PD because Kitna lived in Gainesville).  Depending on internal policy and decision making, once the law enforcement agency receives the tip, they will either seek a collaboration with ICAC and get a search warrant or seek the warrant on their own.  In this case, likely due to better resources, Gainesville PD collaborated with ICAC.  ICAC is a network of 61 (as of the date of this blog) task forces comprising both Federal and State law enforcement agencies and their accompanying prosecutorial offices aimed at prosecuting internet crimes against children.  Over the years as law enforcement has focused more on sex crimes and more specifically, sex crimes facilitating the internet, coalitions of law enforcement agencies specialized in combating this kind of crime have grown.

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Rock-291x300
Nine times out of ten if a person is indicted in a Federal criminal case, they will most likely be charged in a conspiracy.  Generically, a conspiracy is nothing more than an agreement to commit some type of criminal act.  18 U.S.C. 371 is the most general form of conspiracy and requires the following to be proven in the 11th Circuit:

  1. The existence of an agreement to achieve and unlawful objective;
  2. A defendant’s knowing and voluntary participation in the conspiracy;
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Being arrested doesn’t have to mean you will spend a significant amount of time in jail after your arrest. The bail bond system allows someone who has been arrested for a crime to be released from jail pending their trial. This important facet of the criminal justice system ensures that you can continue to work, as well as consult with your criminal attorney regarding your defense strategy. The bail bond system often requires the use of money or property as collateral to assure that you will appear in court on your scheduled trial date.

How Bail Bonds are Set

In most state courts the amount of the bond paid for bail is set by a schedule related to an administrative order signed by the chief judge in the applicable jurisdiction.  Each offense has a predetermined bail amount, based in part on the severity of crime, that must be posted prior to release from jail.  Examples of many crimes that will have a schedule bond attached are Grand Theft, Petit Theft, Simple Possession of Narcotics, or Disorderly Conduct.  Under these schedules and in nearly every state court, bail is not available to people who are viewed as flight risks or when they are determined to pose a danger to the community.

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Former star of reality tv show “The Bachelor” was arrested in his native Iowa last week and charged with leaving the scene of an accident with death after he is alleged to have rear ended a tractor driven by Kenny Mosher and fleeing the scene.  According to a news report, the accident occurred approximately 15 miles south of his hometown of Arlington, Iowa, a town featured in the 2015 season of the Bachelor.  According to police, when they arrived on scene they found Soules’ abandoned truck near the crash scene and alcoholic beverage containers within.  Soules made an initial appearance in Buchanan County on April 25, 2017 and was ultimately released on a $10,000 bond.  Soules’ attorneys have filed a motion to dismiss the felony charge, alleging in part that Soules did not violate Iowa’s leaving the scene of scene of an accident statute because he called 911 and identified himself.  His lawyers further claim that Soules remained on scene and attempted to resuscitate Mosher until first responders arrived, remaining for several minutes after their arrival.

While I am a Florida attorney and not licensed in Iowa, I cannot speak to the workings of Iowa’s criminal code.  Florida statute 316.027 requires the driver of a vehicle involved in a crash occurring on public or private property which results in the death of a person to immediately stop the vehicle at the scene of the crash, or as close thereto as possible, and remain at the scene of the crash until he or she has fulfilled the requirements of Florida Statute 316.062.  Florida Statute 316.062, in this instance would require Soules to either give his name, address, and vehicle registration information to the other party to the crash or a police officer responding if the other party to the crash is not in a condition to receive the information.

Ultimately the State Attorney’s Office, in situations such as these, will assume that the individual left the scene because they were intoxicated.  Florida has contemplated the fact that this happens, more than it should unfortunately, and has closed the loophole on a safe harbor for one who leaves the scene in an accident causing death.  Regardless of whether the person is found to be driving under the influence at the time of crash leading to death, if the individual leaves the scene, they are subject to a four-year minimum mandatory prison term if convicted.  The charge is a first-degree felony as well, thereby requiring an adjudication of guilt.  In essence, what the legislature has done is eliminate any benefit for a person to flee the scene and, from a practical standpoint, likely makes it worse on one who does leave if they are to plea given the interpretation of their actions by the State and Judge.

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It was only $23 worth of merchandise. The very charge has the word “petit” in it. Why is this a big deal? The State as offered an adjudication of guilt and nominal court costs, shouldn’t I just accept that and walk away? Not only no, but hell no. Petit theft, or any other variety of crime of dishonesty are snakes in the grass that keep biting long after resolution if not handled correctly. Far too often I receive calls from individuals who resolved a theft allegation to a nominal direct penalty in Court, only to have that decision haunt them for the rest of their lives. Anything an individual does that calls on credibility will be affected by a criminal history reflecting a crime of dishonesty. For that reason, it is absolutely imperative to retain a criminal lawyer well versed with not only the direct consequences of a theft crime, but also the collateral consequences often overlooked.

A common Petit Theft charge is either classified as a first or second-degree misdemeanor, depending on the value of the item alleged to have been taken. If the property is between $100 and $299.99 the petit theft will be classified as a first-degree misdemeanor punishable by up to 11 months, 29 days in county jail and a $1000 fine. If the value is less than $100 the second-degree misdemeanor is punishable by up to six months in the county jail and a $500 fine. For all intents and purposes the State Attorney’s Office will treat petit theft in the same fashion regardless of its misdemeanor level. What often gets overlooked is the fact that an adjudication of guilt to a petit theft could result in a driver’s license suspension and such conviction will remain the basis for disappointment for years to come. Any job application that triggers a criminal background check will yield a reflection that the applicant has a crime of dishonesty. Employers are very hesitant to hire one with a theft conviction in their past for fear that the person will steal from them, or worse, steal from a customer resulting in reputation damage or the threat of a lawsuit. Obtaining a mortgage or housing as a renter could be made exponentially harder if a background check reveals a theft charge. Any lender or landlord must rely on the credibility of the individual tasked with paying a loan or rent. The simple fact is, those with criminal histories involving theft crimes are going to have a hell of a lot harder time finding housing due to potential issues with credibility. For those that seek higher education and an ultimate licensure, having a crime of dishonesty on your record could inhibit or delay that process.

At the end of the day people may make youthful mistakes or mistakes of desperation that are aberrant and out of character. I believe that the sum of an individual is not their worst deed and hate when I see someone who is suffering from a mistake made years ago or worse, from a choice to resolve a charge based upon poor legal advice. It is critical if charged with any variety of theft crime, regardless of severity, to consult with a Tampa theft attorney well versed in both the direct and collateral effects of crimes of dishonesty. Jason Mayberry has protected his clients in the Tampa area for over ten years. Call on his experience to help you on your case now and to ensure an isolated charge doesn’t haunt you for years down the road. Contact us today at 813-444-7435 for a free consultation.

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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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Ah, the wonderful world of divorce and the precipitating domestic violence allegations that often accompany it. While not an uncommon crime, allegations occurring 6,834 times in Pinellas County last year and 6,387 times in Hillsborough County according to the Florida Department of Law Enforcement Crime Report statistics, what is rare is to have an incident on video. This is just such an example for Pinellas County resident Corinne Novak who stands accused of domestic battery against her unnamed husband for allegedly grabbing his crotch during a time-sharing exchange of their two children. On video, a hand alleged to be Ms. Novak’s is seen blasting into view and appearing to intrude in her unnamed husband’s genital region, against his will as indicated by his reaction, also caught on video. While this fact alone presents a considerable issue for even the most seasoned criminal attorney, her statement immediately after the alleged grabbing of her husband to “call the police” and that she’s “going to tell them that you (her husband) just assaulted me (Ms. Novak)” could circumstantially throw away any legitimate argument she had.

While not yet formally charged through information of any crime, Ms. Novak is accused of domestic battery and in some capacity violating the conditions of her initial pretrial release. Domestic battery in Florida is nothing more than an allegation of battery against a family or household member. A battery in this case would be proven if the State Attorney can show beyond a reasonable doubt that Ms. Novak intentionally touched or struck the unnamed husband against his will or alternatively if it can be shown beyond a reasonable doubt that Ms. Novak intentionally caused bodily harm to the unnamed husband. Ms. Novak, while still technically married to the unnamed husband, is a spouse and thus considered a family or household member thereby satisfying the domestic enhancement in this charge. So what difference does it make if a battery case is considered domestic in nature?

When a simple battery is ramped up to a domestic battery, the direct and collateral penalties/consequences become more severe. Initially, if your battery is considered domestic in nature, you will not receive a schedule bond and must see a Judge at a first appearance/advisory in order to have pretrial release conditions considered. As a general rule, if one stands accused of a domestic battery and the alleged victim desires for the case to move forward, there is a strong likelihood that the accused will have a no contact order placed against him or her and will not be able to contact the alleged victim, often their children if the circumstances are relevant for this, and will not be able to return to the shared residence. Under Florida Statute 741.283 if the accused is convicted and there is a showing that bodily harm was inflicted upon the victim, a five-day minimum mandatory jail sentence will be imposed. Even if a plea is entered and a withhold of adjudication is imposed, because the domestic battery is an act of domestic violence as described in Florida Statute 741.28, the record will never be permitted to be sealed or expunged. Under Florida Statute 790.06 if one pleas to a domestic battery or domestic violence related charge, that person’s concealed carry license will be revoked and the individual must go three years from the time is completed before he or she will be considered for a new concealed carry permit.

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The St. Louis Cardinals baseball team is under investigation by the FBI and Unites States Attorney’s Office in Houston, Texas for allegedly hacking an Astros player database. The New York Times reports that FBI and Department of Justice officials have evidence that Cardinals officials tapped into a database created by a current Astros exec and former Cardinals exec. According to the Times report, the database contained information on player statistics, scouting information, and internal discussions about players, trades, and other proprietary information. Thus far, both the Cardinals and Astros have been served with subpoenas but no formal charges have been returned against the Cardinals officials responsible for the breach. It is believed that Cardinals officials “gained access to the Astros’ database by using a list of passwords associated with Astros general manager Jeff Luhnow dating to his tenure with the Cardinals from 2003 until he left for Houston after the 2011 season,” according to ESPN reports. Surprisingly, these databases were allegedly accessed using this information from the homes of the Cardinal executives involved.

While this incident is being compared immediately to the Spygate scandal involving the alleged videotaping by the New England Patriots of opponents’ practices, under the surface there is potential that this incident could have far more severe implications through the federal criminal justice system. 18 U.S.C. 1030(a)(4) makes it a federal crime for anyone to knowingly and with intent to defraud, access a protected computer without authorization…. and by means of such conduct further the intended fraud and obtain anything of value. One potential issue that could be raised by a federal criminal lawyer is the element requiring something of “value.” In essence, the question would be is there a value that can be said to be attached to a baseball team’s database compiling information important to the game as it’s played on the field? I would think a federal prosecutor would answer in the affirmative and would consider the information accessed to be congruent to a major corporation’s trade secret. 18 U.S.C. 1839 defines a trade secret, in relevant part, as business information, tangible or intangible, that the owner has taken a reasonable measure to keep secret, and the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by the public. Bringing this all together, under this theory I believe the federal prosecutor would argue that this information is a trade secret, value of which is in the potential for the Astros to properly scout and prepare for their opponents in order to win and ultimately, very likely be more profitable. Essentially, if there is any way the information accessed could contribute to value, it could very likely be considered a trade secret. Conversely, I think a Federal criminal attorney could argue to a jury that there is no way to assign a value to the information as the leap from the information accessed to actual profitability of the team is too far to make it a legitimate trade secret. In other words, what was accessed was not the recipe for Coca Cola or Chic Fil A’s delicious chicken sandwiches. 18 U.S.C. 1030(a)(5)(c) criminalizes the intentional access of a protected computer without authorization, and as a result of such conduct, causes damage and loss. I believe the same argument for both sides would apply here.

What about the good old sweeping charge of wire fraud? Generically, government must prove beyond a reasonable doubt that a defendant (1) used either mail or wire communications in the foreseeable furtherance, (2) of a scheme to defraud, (3) involving a material deception, (4) with the intent to deprive another of, (5) either property or honest services. Bingo! Yet again, the federal prosecutor’s best friend makes a conviction a little easier.

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Winston
Want some terrible advice? Don’t break a car window to save a poor puppy about to overheat if you’re anywhere in the State of Georgia. Michael Hammons of Athens, Georgia, a desert storm veteran, is finding this out the hard way after breaking the window of a car he found with an overheating dog inside. According to several news reports, Hammons was walking through a parking lot when he noticed a Ford Mustang with a small Pomeranian mix inside. With no windows open and no air conditioning running, the dog was distressed and likely about to die according to a number of onlookers.  After Hammons broke the window to rescue the dog he was charged with trespass per the dog owners demand!

So, morally and ethically, the advice NOT to break the window is terrible and one would have to be a real son of a bitch to not save this little dog. It seems as though Georgia would prefer to have a number of dead dogs and sons of bitches roaming around in order to prevent their version of trespassing from being committed. As attorneys we can’t uphold our oath to the bar and advise one to break the law at the same time. To do one excludes the other. In this situation, that’s tough to do. So what happens now and what would happen to someone in Florida if they did this?

First and foremost, I’m hard pressed to think of an incident in Florida where someone has left their hound in a hot car where they weren’t prosecuted for animal cruelty if the dog was in distress or died. In Florida, plain jane animal cruelty is a first degree misdemeanor punishable by up to 11 months, 29 days in jail and is proven if it can be shown that someone carried an animal in or upon a vehicle in a cruel or inhumane manner. In a Florida summer with the windows up and the dog left in a car the person is probably toast. Unless you get a jury of sons of bitches, once they hear those facts you’re out regardless of how good your criminal attorney is. So what if you break the window like Mr. Hammons? In my book you’re a hero. That said, theoretically you could be charged with trespass to a conveyance (a car is a conveyance) if they can show you willfully entered the conveyance belonging to another without their permission. There is a thought that criminal mischief could be charged if it can be shown that you damaged the personal property of another in a willful and malicious capacity.

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Mayberry Law Firm
3902 Henderson Blvd, #208-136
Tampa, FL 33629
Phone: (813) 444-7435

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