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September 2014 Archives

Is credit given if some of the money is paid back to defrauded investors?


Yes, the court should. Ponzi schemes seem to stand the test of time. There never seems to be a shortage of people willing to invest in a so-called 'sure thing'. And people continue to perpetrate these crimes without the thought of the prison time they risk going forward with these schemes. As a Jacksonville criminal lawyer, I have seen many such schemes.

Can the police seize cash and take it all in a forfeiture action?


Yes, unfortunately, the police can seize cash and take in all in a forfeiture. As a Jacksonville criminal attorney, I have argued that this constitutes an excessive fine under the Eighth Amendment. The Ninth Circuit Court of Appeals decision, on August 21, 2014, in U.S. v. Cyr, is an illustration of what not to do if the police discover a large sum of cash in your possession. Mr. Cyr, a Canadian citizen, crossed the border into the United States by airplane with $132,245. He failed to report the cash on a customs declaration form. While this seems rather minor, it's a federal crime. Nine days later, Cyr was pulled over for speeding; the cop noticed that Cyr was "extremely nervous". He then gave the cop permission to search his car (mistake number one). The cop found a bag containing $132,245. Then, with Cyr's consent, a drug dog was called in and alerted positive to the odor of a narcotic substance on the money (mistake number two). An investigator was called to the scene and began questioning Cyr about the source of the money. Cyr could not provide any documentation as to where the money came from (Cyr talking to the investigator, mistake number three).

Can my silence at the time of my arrest be used against me at trial?


No, silence at the time of arrest cannot be held against you. The courts have repeatedly held that prosecutors may not ask an accused about his post- arrest silence. Such questioning is a violation of one's Fifth Amendment right to remain silent. And this makes perfect sense. The first and most important Miranda warning, as we all know from watching TV crime dramas and movies is "You have the right to remain silent". So if an accused does remain silent, it follows that a prosecutor cannot ask that person on the witness stand, "Why did you remain silent when you were arrested and not tell the police what you are telling us now in court?" That prosecutors are not allowed to ask this question is one of the most basic rules of cross-examination. So it's surprising how often they get it wrong and do ask this question. I have seen it happen first hand as a Jacksonville criminal defense lawyer.

Can police keep cash they find in a car stopped for a mere traffic infraction?


Unfortunately, yes the police can keep the cash and they do, every day. The law enforcement practice is known as civil asset forfeiture, in which the police seize cash or goods from a person suspected of a crime, even if no charges are ever brought against that person. Since 2001, police have seized a staggering $2.5 billion in cash from people who were never charged with a crime. As a Jacksonville criminal defense attorney, I represent people fighting civil asset forfeitures.

Will a prosecutor's misstatement of facts at trial cause a reversal of a conviction?


Yes, it probably will. Although closing arguments during a trial are a time of persuasion, a prosecutor cannot misstate facts and encourage a jury to convict you on the basis of evidence not presented at trial. I have seen this happen as a Jacksonville criminal attorney. One would think that a prosecutor would never do such a thing, but this is exactly what happened in the case of U.S. v. Mageno. Nancy Mageno's godson, a leader of a methamphetamine conspiracy, did not speak English fluently, so Mageno translated telephone calls for him. As a result, Mageno was prosecuted for knowingly joining and participating in the drug conspiracy by fostering communication between its participants and her godson.

Can I be placed at a crime scene with nothing more than cellphone records?


Yes, you can. However, the use of cellphone records to place suspects at or near crime scenes is coming under attack in courts nationwide. Cellphone records are often used as evidence, relied upon to trace which cell tower was used to make or receive a call and then determine a caller's whereabouts. But experts say that using a single tower to precisely locate where someone was at the time of a crime has severe limitations. And while good criminal defense lawyers now recognize the problems with such evidence, the FBI continues to rely heavily on this form of 'evidence' in its investigations. As a Jacksonville criminal defense lawyer, I have argued the unreliability of this type of evidence.

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