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Retired Supreme Court Justice Major Harding wrote in a letter to Florida State University quarterback Jameis Winston’s attorney Sunday that Winston was cleared of all code of conduct allegations against him. In Justice Harding’s letter it was cited that, “[i]n sum, the preponderance of the evidence has not shown that you (Winston) are responsible for any of the charge violations of the Code.” For a little over the past year Jameis Winston has been the focus of an alleged sexual assault against a former FSU student after the two left together from local bar Potbelly’s. In spite of Leon County State Attorney Willie Meggs declining to file criminal charges against Winston, FSU went forward with their own Title IX investigation, electing to allow the option of one of three retired Florida Supreme Court Justices to sit as the finder of fact. In using this process, both Winston’s attorney and the accuser’s attorney could veto one of the three judges each. After the vetoes were made from both parties the ultimate selection was Justice Major Harding, a man without ties to Florida State. Justice Harding is a distinguished and respected jurist having sat on the Florida Supreme Court from 1991 to 2002, with two years of his tenure as Chief Justice.

In Winston’s code of conduct review, the threshold allegation was whether it could be proven by a preponderance of evidence that Jameis Winston violated Florida State University Student Conduct Code 6C2R-3.004(1)(e)1 for an allegation of sexual misconduct. “Preponderance of the evidence” under Florida State University code, means that the evidence, as a whole, shows that the fact sought to be proved is more probable than not. 6C2R-3.004(1)(d)8. In other words, if Winston’s accuser could have shown by just a tip of the scale or by 50.1% of the evidence, that Winston violated the code of conduct, he would have been found to be in violation and could have faced expulsion from the institution. Unlike the “beyond a reasonable doubt” standard in a criminal case, preponderance of the evidence is a considerably easier standard to meet for the party that bears the burden of proof. As a Tampa criminal attorney when I defend someone accused of a crime, I have the benefit of defending an individual to a standard that in order for them to be convicted, the State must show there is no other reasonable explanation for what occurred than the specific facts they allege. When one thinks of beyond a reasonable doubt in the inverse it is a little easier to see just how difficult the standard is to meet assuming the jury holds strongly to the jury instruction’s dictate.
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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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Volusia County woman Angela Stoldt of Deltona is accused of stabbing her neighbor, James Sheaffer, in the eyes with an ice pick before strangling him to death in a cemetery. After the alleged murder, Ms. Stoldt is accused of taking Mr. Sheaffer’s corpse back to her kitchen where she is said to have dismembered his body, followed by her attempt to cremate the remains. After her cremation attempt failed, Ms. Stoldt is alleged to have simply throw his remaining body parts out with the trash. As one can imagine, Ms. Stoldt’s alleged attempt to dispose of the evidence failed, instead leading to her arrest on murder charges. Ultimately Ms. Stoldt was charged with murder, tampering with evidence, and abuse of a corpse.

According to news reports, Ms. Stoldt was originally charged with second-degree murder until a Grand Jury returned an indictment for first-degree murder on or around November 12, 2014. Unfortunately for Ms. Stoldt, when one is indicted for first-degree murder there is the ever present potential for the death penalty. As for both first and second-degree murder in Florida, it must be proven that 1) there is a death, and 2) the death was caused by the criminal act of the defendant. What differentiates the degrees of murder is the mental state element. For a first-degree murder charge to stick, the State Attorney must prove that the defendant killed the victim with premeditation as opposed to merely performing an act imminently dangerous to another with a depraved mind. In other words, a first-degree murder charge requires an intent with some thought rather than just going a bit crazy and acting like a madman. For Ms. Stoldt, if she did in fact gouge out Mr. Sheaffer’s eyes and then follow that up with choking him, it would be more difficult for her criminal lawyer say that a singular depraved act caused the death. Furthermore, the combination of acts would provide support for an argument that there was ample time for reflection, which in turn lends support for the State’s allegation of premeditation.
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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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Oh Florida, here we go again. Generally it’s the average Joes and Janes making the news for crazy allegations, now it’s the cops. 32-year-old Broward County Sheriff’s Deputy Ted Arboleda is accused of foregoing a legitimate arrest of a woman in exchange for her offer of oral sex. Arboleda is said to have made routine contact with the woman at a local gas station where he found her to be without a valid driver’s license, in possession of marijuana, and in possession of an unlabeled bottle of prescription medication, all while on felony probation. According to news reports, initially the woman tried to bargain with the good deputy with cash in exchange for him to look the other way, though that wasn’t convincing. Allegedly, in the course of the course of the skillful negotiation it was decided that not only would Arboleda not arrest the woman, he would drive her home where the oral sex is alleged to have occurred. According to news reports, Arboleda told the woman this was his first time in this kind of rodeo and that he ultimately, “could not believe he agreed” to what he’d done and told her not to tell anyone.

Yes, Ted. Good strategy. Tell the lady with the drug problem who just agreed to tune you up (allegedly) to keep quiet. No doubt she is the one you can rely upon to keep your dirty little secret. In all seriousness, Ted Arboleda is entitled to the same deference anyone else is when accused of a criminal offense. He is entitled to be considered innocent until proven guilty, just as his accuser was when she was initially charged with her crimes. The reality of this situation is that it could come down to a he said she said incident, unless there is video footage, reliable eyewitness testimony, some type of GPS tracking system on his car, or Deputy Arboleda ignorantly elected to talk to the police. If none of that exists, if it comes down to his word against hers, chances are his word will prevail and I believe that’s how many criminal attorneys would handle this case, at least in part.
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Dr. Farid Fata recently pled guilty to 16 Federal criminal counts including 13 counts of healthcare fraud, two counts of money laundering and one count of receiving kickbacks. In a disturbingly unusual case involving a doctor fraudulently submitting requests for reimbursement from several healthcare organizations, Dr. Farid Fata went so far as to knowingly misdiagnose several patients with cancer and subsequently ordering that they receive cancer treatments, including chemotherapy. In doing this he was able to bilk several healthcare organizations out of a ton of money to his benefit. In spite of only 10 patients being named in the indictment, US Attorney Barb McQuade believes there to be many more patients affected and misdiagnosed in a similar capacity. At least one patient died while under the care of Dr. Fata though a murder charge is unlikely at this time.

While the admission by Dr. Farid Fata that he knowingly administered chemotherapy to those not in need of it is no doubt disgusting, US Attorney Barb McQuade’s effort to earn a life sentence on Dr. Fata could fall short. Healthcare fraud, as charged under 18 USC 1347 typically carries with it a 10 year maximum penalty unless serious bodily injury occurred as defined in 18 USC 1365(h)(3). An issue will be whether improperly administering chemotherapy, which is poison, involved a substantial risk of death, extreme physical pain or a protracted loss or impairment of the function of a bodily member, organ, or mental faculty. In spite of the maximum penalty, sentencing guideline 2B1.1, amongst others, dictates aggravating factors that could drive the guidelines to a level suggesting more time be served than a statutory maximum. If the guidelines suggest a higher sentence than allowed by a statutory maximum on a singular count, the court can run the sentences for multiple counts consecutively, “but only to the extent necessary to produce a combined sentence equal to the total punishment.”
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Jeffersonville, Indiana man, Joseph A. Oberhansley, 33, is accused of murdering his girlfriend and ultimately eating portions of her corpse. Oberhansley was arrested last Thursday after police came to his girlfriend, Tammy Blanton’s home looking for her as she failed to show up for work. According to news sources, Oberhansley began acting suspicious when police questioned him as to Blanton’s whereabouts. Police observed a fresh cut across Oberhansley’s knuckles during their contact and then patted down Oberhansley for weapons, finding a knife in the accused’s back pocket full of hair and what appeared to be blood. Officers then combed Blanton’s home calling her name only to find her corpse under a vinyl camping tent in her bathtub. Her skull had been crushed from multiple sharp force trauma to her head, neck, and torso. As if things weren’t ugly enough, after an autopsy was performed it is noted that part of Ms. Blanton’s heart, lungs, and brain were missing. Bad for Mr. Oberhansley, the missing body parts will no doubt be used by Prosecutors to correlate with a dinner plate found in the home with what appeared to be skull and bone resting on it and a pair of cooking tongs with blood all over them. That said, it won’t help Mr. Oberhansley’s case that he admitted to police that he removed several of Blanton’s organs and ate them, both cooked and raw.

Ouch. Hard to say much more about this. Unless there is a golden nugget of information regarding this situation unknown at the time of this blog, this Tampa criminal attorney is of the opinion that Mr. Oberhansley is in a bit of trouble. As it stands, he will very likely be charged with Indiana’s first degree murder statute for a premeditated killing of Ms. Blanton. I can’t speak for Indiana but if this case were in Florida, the State would need to prove the following: 1) Ms. Blanton is dead. 2) The death was caused by the criminal act of Mr. Oberhansley, and 3) There was a premeditated killing of Ms. Blanton.

Though this is tragic, the strangest (and grossest) issue is the evidence of cannibalization of his girlfriend. Though Indiana doesn’t appear to have a statute on the books specifically dealing with cannibalism (neither does Florida though he would get charged with abuse of a dead human body against FS 872.06) he will be charged with abuse of a corpse. Again, were this in Florida the State would have to prove that Mr. Oberhansley mutilated, committed sexual abuse upon, or otherwise grossly abused the corpse of Ms. Blanton.
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Just about every Federal felony carries behind a term of incarceration a period where one is on a probation like status called supervised release. For all intents and purposes supervised release is just like probation in that you will be monitored by a Federal probation officer, will forego certain rights while on supervision, and will have to meet certain requirements laid out by the Court specific to your case in addition to those general requirements for anyone on supervised release. For the most part as long as you mind your P’s and Q’s you won’t have an issue with a potential violation. Should you slip up, depending on the severity of the slip up, you could receive anywhere from nothing more than a stern coming to Jesus conversation from your Federal Probation Officer all the way up to several more years in a Federal prison. Regardless of your violation, because you were on Federal probation, you need to speak to a Federal violation of supervised release attorney quickly to generate a strategy.

A violation of Federal Supervised release occurs when you commit a new crime or you technically violate your supervised release by dropping a dirty urine, miss a meeting with your Federal probation officer, or some other minor type of conduct that technically violates the terms of your supervised release. As with any criminal offense, the sentencing potential is related to the seriousness of the alleged violation. The severity levels are classified as follows:
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Sunrise, Florida man, Khemraj Samlall told law enforcement he was only joking when he allegedly attempted to ignite gasoline that he “accidentally” spilled on his wife and her bed earlier this week. As a result of this claimed joke, Mr. Samlall is now facing felony charges of aggravated assault with a deadly weapon without the intent to kill. According to reports Mr. Samlall and his wife were arguing after Mr. Samlall came home drunk. Mrs. Samlall is thought to have told him he was a bad father for not spending enough time with his children, prompting Mr. Samlall to retrieve a red gas can from outside in order to dump the gasoline contents on his wife and her bed. Mr. Samlall claims his actions were nothing more than a joke and his attempt to convince her to leave him alone and in the process he accidentally spilled gasoline on her and her bed. He further claims that his attempt to light the gasoline with a lighter was merely a joke, without an intent to do any harm. As so often is the case with an allegation of domestic violence, after initially telling police that she feared her husband, Mrs. Samlall retracted her statement, telling a Judge that Mr. Samlall is a great guy and a good father to their children.

Hmm… Evidently they joke a little differently in south Florida. That said, I get it. Nagging wife, guy gets a little soused up at the bar with his rough riding buddy after watching his team get dominated by a lesser opponent. Times are tough and you come home and are met at the door by the Angry Bird that explodes upon impact. Mrs. Samlall was running hot when Khemraj rolled in. Tale as old as time. We’ve all been there. That said, I’m still not sure the old “dump an accelerant on her and watch her squirm as I strike a lighter” joke was totally appropriate. The knives may have taken it a bit too far as well. Get better Khemraj!!!

In all seriousness, the defense of “just kidding” probably isn’t going to cut it in this situation. Aside from the fact that this could have obviously killed his wife and burned his home to the ground, Mr. Samlall now faces extremely serious charges. Aggravated Assault is codified at Florida Statute 784.021 and is really nothing more than an upgraded assault. Defined, an aggravated assault with a deadly weapon charge in Florida is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent all while having in their possession a deadly weapon. In this case, where there is no firearm present Mr. Samlall will avoid a minimum mandatory sentence but does face the prospect of prison time, as his charge is a third degree felony, punishable by up to five years in prison and a $5,000 fine.
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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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