Firearms for Protection and Aggravated Assault

Here is a common fact pattern I have seen since the earliest days of practicing Florida criminal defense law: 

A citizen is driving along the highway in their vehicle. They are a concealed weapons permit holder or not. Suddenly, out of nowhere, they are confronted with an aggressive driver - perhaps they are in the left lane on a busy highway doing 50 miles per hour in a 45 mph zone. 

The aggressive driver, not getting that "slower traffic keep right" means "slower traffic up to the lawful maximum speed limit and not over it, keep right," becomes angry. As the anger builds, the aggressive driver begins to flash the headlights, honk the horn, and as the anger begins to overcome emotional restraint, ultimately makes a risky pass and runs the first driver off of the road.

The victimized driver resumes driving, but pulls a handgun from the glove box or back seat or wherever, and puts on the passenger seat. After all, this is why the victimized driver got the gun in the first place: protection.

Due to the ebb and flow of traffic, the victimized driver ends up in front of the aggressive driver again, albeit in the right lane. The aggressive driver, unable to let the prior incident go, begins to hound the victimized driver, as traffic melts away and no one is around. Aggressive driver honks the horn continuously, flashes the headlights, pulls back and races up to within a few feet of the victimized driver's bumper. And ultimately, pulls alongside motioning for the victimized driver to pull over so they can fight on the side of the road.

Finally, after another attempt is made to run victimized driver off of the road, the repeatedly traumatized victimized driver has had enough and displays the holstered gun to aggressive driver in order to be free of this highway abuse. Aggressive driver immediately backs off, and for a moment, victimized driver breathes a sigh of relief. Until the realization dawns that aggressive driver follows every twist, every turn and even every u-turn, until help finally arrives in the form of blue lights flashing.

Both vehicles pull over, as a second police car arrives. Victimized driver is then stunned to be ordered out of the vehicle by police officers with drawn guns, ordered to lie on the ground, and is searched, cuffed and pulled up.

Aggressive driver dialed 911 and claimed that victimized driver did everything that aggressive driver actually did, and also claims that victimized driver pointed a gun at aggressive driver and that aggressive driver then called 911 . . . for protection.

Victimized driver is then arrested, charged with Aggravated Assault with a firearm, and taken to jail.  

After a night in jail, the victimized driver then sees a judge the next day, makes a bail bond, and is released.

Much to the victimized driver's horror, he or she learns that the minimum penalty under the law is three (3) years in prison with no gain time. Thus the victimized driver, who bought the gun in self-defense, learns that the only key out of the courtroom is a trial by jury: A win brings freedom. A loss means up to two additional years in prison. 

Imagine being confronted with a plea "bargain" of three (3) years in prison and risking five (5) if a jury believes the aggressive driver.

Now, imagine the terrifying decision process regarding the risks of a jury trial taking place after a spate of well publicized shootings at movie theaters, shopping malls, work places and schools. 

Welcome to my daily experience as a criminal defense attorney practicing Florida Criminal Law. Cobb Criminal Defense Law Firm handles at least one weapons and firearms case like this each month.

911 Recorded Call Violates Florida Wiretap Statute

Wiretap 934.03(2)(g)2

Florida Criminal Defense Attorney notes that a call from a 911  dispatcher TO a crime scene violated the Florida Wiretap Statute "section 934.03(2)(g)2, which the court broadly construed to allow an emergency agency to intercept and record  any  wire communication in order to acquire necessary information to render aid and assistance." Complete Opinion Follows:

911 Recording Violates Wiretap Statute

Case Excerpts:

"On January 17, 2010, a dispatcher with the Escambia County Sheriff’s Office, received a 911 call from a woman reporting a disturbance occurring at her daughter’s house next door.  The woman gave the dispatcher the telephone number for that residence, and the dispatcher called the number to see if anyone there needed police assistance.  After the line was answered, the dispatcher heard screaming and yelling in the background.  No one said anything on the line; the line was simply open, and the dispatcher could hear a male threaten to shoot everyone in the house and himself.  This call was recorded."

"Section 934.03 prohibits the intentional interception and disclosure of wire, oral, or electronic communications without the parties’ consent or court authorization.  However, an employee of an agency operating an emergency 911 system may lawfully intercept and record incoming wire communications on designated “911” telephone numbers and published nonemergency telephone numbers staffed by trained dispatchers at public safety answering points only.  It is also lawful for such employee to intercept and record outgoing wire communications to the numbers from which such incoming wire communications were placed when necessary to obtain information required to provide the emergency services being requested."

§ 934.03(2)(g)2, Fla. Stat. (2009) (emphasis added)

"[T]he trial court erred in denying his motion to suppress an audio recording made by a 911 dispatcher . . . ."

911 Call in Your Case? Call 813-222-2220

Junk Science and Federal Criminal Defense

Florida Federal Criminal Defense Attorney, W.F. ''Casey'' Ebsary, Jr. just returned from a great seminar on fighting the admissibility of Junk Science in federal criminal cases.

To attack Junk Scientific Evidence, one must look beyond the practitioners of the field itself. State of Maryland v. Bryan Rose, K06-0545 (Cir. Balt. Co. 2008) (“general acceptance of latent print identification by its practitioners does not constitute general acceptance by the ‘scientific community’ . . .”); United States v. Saelee, 162 F.Supp.2d 1097 (“Finally, the evidence does indicate that there is general acceptance of the theories and techniques involved in the field of handwriting analysis among the closed universe of forensic document examiners. This proves nothing.”). In most cases, the Government has not and will not be able to produce anyone beyond law enforcement technicians.

The seminar is available for free here: Junk Science in Federal Courts

Thanks to Attorney Frank Godbold.

Tell Me Your Story Toll Free 1-877-793-9290

Florida Loan Prosecutions to Skyrocket According to Feds

Loan prosecutions in Federal Court in the Middle District of Florida - here is what to expect in terms of filings from the US Attorney's Office in Tampa, Florida.

White Collar prosecutions will surge as FBI and Federal authorities will put substantially more effort into white collar prosecutions. While It may take two (2) years before we see filings involving the big conspiracies - many smalller financial fraud cases will be coming soon. For example, single-person doing 3 mortgages he or she took out. Ft. Myers and Charlotte County is expected to have the most prosecutions in our district and may be the epicenter of these cases in the United States. Indictments should be coming along very soon. The need for expert services will increase.

Bank Fraud charges arise from defrauding an FDIC insured institution, under 18 USC Section 1344.

Federal Criminal Defense Attorney, W. F. ''Casey'' Ebsary, Jr., is available to help when the feds come knocking. Call Toll Free 1-877-793-9290.

Loan Fraud Prosecutions

Florida Financial Fraud Defense Attorney on Uptick in Prosecutions

Florida Financial Fraud Defense Attorney, W.F. ''Casey'' Ebsary, Jr., expects an uptick in Prosecutions. According to the New York Times, Senators have introduced new legislation to increase enforcement and detection of white-collar crime in the wake of the $50 billion fraud allegedly perpetrated by Bernard L. Madoff. There is a proposal to add $110 million to the budgets of the Justice Department, the Securities and Exchange Commission and the F.B.I. to help crack down on Wall Street fraud. The new legislation is known as the Supplemental Anti-Fraud Enforcement (“SAFE”) Markets Act. The F.B.I. would get the bulk of the funds, $80 million, to hire 500 new agents in its white-collar crime division.

Florida Financial Fraud Defense Attorney, W.F. ''Casey'' Ebsary, Jr., is available toll free at 1-877-793-9290.

Florida Financial Fraud Defense Attorney

Mortgage Fraud Criminal Defense Attorney - Tampa Florida

Tampa federal criminal defense attorney notes interest by United States Attorney in pursuing loan and mortgage fraud cases. According to recent reports, Florida is first in the nation in mortgage fraud. Sources report that Tampa is second in the amount of suspicious loan activity. Miami Dade tops the list.

There is a new focus by law enforcement on theses case as previously suggested on this site. U.S. Attorney A. Brian Albritton told a newspaper that "The allegations that were made would fall in the range of something that our office would be interested in . . . Mortgage fraud, in its essence, comes down to lying . . .The goal of this office, given the resources that we have, is to find the most significant cases involving those lies."

A Florida man prosecuted by Albritton's office was sentenced to 10 years incarceration and ordered to pay $6.5-million in restitution for mortgage fraud. In June, four others in a mortgage fraud scheme were indicted.

Dave Couvertier of the Tampa FBI has recently stated "we would reassure the public that the FBI views mortgage fraud as a significant and growing crime problem," The Florida FBI official also stated that "Combating significant fraud in this area is a priority for us."

The Law Office of W.F. ''Casey'' Ebsary, Jr., A Board Certified Criminal Trial Lawyer, experienced in State and Federal Courts, can provide help in defending these types of allegations. Casey is available at Toll Free 877-793-9290 and at CentralLaw.com .

Source: SPTimes

Mortgage Fraud Criminal Defense Attorney - Tampa Florida

White Collar Defense - Employees and Attorney Client Privilege - Tampa Criminal Defense

Tampa Criminal Defense Attorney reports that the Department of Justice DOJ has discontinued its policy that previously considered companies as not cooperating if they paid attorney fees for employees or failed to share attorney-client work product and confidences with prosecutors. The new DOJ guidelines that are intended to protect a company's attorney-client privilege, work product, and employees' right to counsel.

Executive Summary: The following is a summary of the new DOJ Policy

Credit for cooperation will depend on the disclosure of relevant facts, not on the corporation's waiver of attorney-client privileges;

A corporation's payment of attorneys' fees for employees is not a factor in determining cooperation;

A corporation's participation in a joint defense agreement with employees does not preclude credit for cooperation;

Whether the corporation has sanctioned or retained culpable employees is not a factor in determining credit for cooperation;

Historically, it has been the DOJ's policy to give credit to a corporation in exchange for its cooperation, but what exactly a corporation must do to earn such credit? According to Deputy Attorney General Mark Filip, the new guidelines reflect the DOJ's "commitment to two goals: safeguarding the attorney-client privilege and
preserving the DOJ's ability to investigate corporate wrongdoing effectively."

Important Note: The guidelines do not apply to investigations by other federal agencies such as the Securities and Exchange Commission and the Environmental Protection Agency.

Criminal Defense of Florida Executives

Criminal Defense of Florida Executives - With falling markets and billions of dollars in funds alleged to be missing, accusations and investigations of purported wrongdoing are sure to follow.

If you or an employee are the subject of an accusation of illegal business conduct, lead counsel at CentralLaw.com can organize your criminal defense team. Lead Counsel, W.F. ''Casey'' Ebsary, Jr. is an AV rated lawyer, a board certified criminal trial lawyer, and has expertise in allegations involving wrongdoing using computers and networks.

Please contact us to find out how our team can help you or your organization.

Cashing In On Crime: The Dark Ages, Part II

The cornerstone of our current system of justice can be summed up in three words: Crime and Punishment. The focus on crime consists of a focus on guilt or innocence. Everything boils down to the focus of whether someone did something illegal. The focus on punishment consists of what is the proper infliction of suffering for a crime that has been committed. Crime = Punishment.

As any rational person can see, our criminal justice system has utterly failed. Likewise, any rational person would never commit crime because of the punishment, right? This is where the whole system breaks down: The founders of our criminal justice system believed it was rational when it is not.

This is not a minor distinction. This is the key to understanding the stupidity of our criminal justice system. The way we look at our criminal justice system is just as important as what we believe we see. What if our way of thinking were to become Crime Solution instead of Crime and Punishment?

In order to see the problem different, we must know something different. Something that the politicians, the media and the pressure groups want to hide from you: They don’t want you to know why we have crime I n the first place. Knowledge empowers. Belief enslaves. The less you know and the more you think you believe, the easier it is to use tricks of psychology to get your time, your vote and your money.

You have been fed crap and kept in the dark.

A prime example of being fed crap is the current hysteria, sex offenders. MSNBC has a popular series, To Catch a Predator. Here’s their spin:

“An ongoing hidden camera investigation into computer sex predators -- grown men, trolling the Web for young teenagers. This time, police are making arrests.”

Does that pass the smell test? I mean, really, does that sound like MSNBC is interested in solving the problem of sex crimes or that MSNBC is more interested in creating a climate of fear, scandal and higher ratings?

To Catch a Predator preys on your fears, preys on your emotion, preys on your logic and ensures a serious problem is transformed into cheap entertainment. If the show were a factual presentation of methods, techniques and strategies for keeping your family safe, that would be one thing. But it isn’t. To Catch a Predator is all about the chase, the titillation, and the big bust.

Although Doc Block and To Catch a Predator are criminal justice cable crap standouts, MSNBC is not the only offender.

CNN’s Headline News inflicts Nancy Grace upon us nightly.

Cashing in on Crime: The Dark Ages of Criminal Law, Part I

Long ago, during the middle ages, something was against the law simply because the king said so. There were no legislatures, no courts as we understand them today, and no check or balance of any kind. Law created by the Divine Right of Kings – God’s chosen representatives who could make up any law at will. Thus, in France, when a peasant whistled appreciatively at a young French queen, the king had the man imprisoned for life on the spot. This arbitrary system of “justice” was not very popular, and the problem was apparent to the intellectuals of the day: The system of governance was unfair and irrational.

Over the centuries, intellectuals began to postulate a new system of criminal justice as part of a new system of government. They argued that law should be created by group of elected leaders who would represent will of “the people.” They believed a rational group of men could create a rational system of government. Rational law could then be created by a rational representative government. Rational punishment would only occur after a rational legal proceeding with rational checks and balances to ensure the fairness of true justice. Rational people would not want violate laws they had a stake in creating. Some people would break the law, they reasoned, but policing and punishment would round out a fair system

The exact form of government varied – a parliamentary system in Great Britain, a republic in America – but the underlying theories were essentially the same: A democratic republic would produce a rational, fair system of justice.

Over time, the debate has shifted. The founders of our nation are long dead. Our memory of governmental legal abuse is gone. Today, our beliefs are influenced by the media, not a bad memory from the past. Instead of worrying over whether the government can force us to house troops in our homes and horses in our barns, we are whipped into a frenzy over whether the system is fair to the victims.

When you hear that someone has burned crying puppy to death, strangled a pregnant mother, or sodomized a little boy, doesn’t it make you angry? Of course, it does. The media, the politicians and the pressure groups are counting on it – angry people act without thinking. And the politicians, pressure groups and the media don’t ever want you to think, they want you to do something. They want your vote, your time, and your money.

Especially your money.

Cashing in on Crime: Politicians, Pressure Groups and the Media

Each day, you pay about $46.10 for each person incarcerated in a jail or prison. Most of these inmates will be released - and re-arrested.

For those of us who work in the criminal justice system every day, it is reasonably foreseeable that they will violate the law in specific patterns. More importantly, it is actually possible to break the cycle of dysfunctional behavior in about 80 percent of all criminal cases. But this isn’t happening. Instead, your tax dollars are being set on fire by a government that just doesn’t get it. People are being hurt, property is destroyed, and the broken system of criminal justice continues to break the heart of many mothers, fathers, brothers and sisters each and every day.

Here is how the game is played.

Someone gets hurt by a criminal act. Next, the media sensationalizes the case for ratings. In response, the public is angered and afraid. A political pressure group is formed. A politician sees an opportunity, so yet another “get tough on crime” bill is introduced. Other politicians jump on the bandwagon, and a bad law is passed. The result? The problem of crime remains unsolved.

Actually solving the problem of crime is unthinkable to the players in the system. Let’s review the impact of actually solving the problem of crime on the players in the system.
The Media: True crime is one of the most popular news subjects for print, internet, television and radio media. If the problem of crime were to be solved, then the media would lose customers and that means losing money. Watch your local news tonight – it will probably start with the crime report.

The Pressure Groups: Can you imagine MADD’s paid political and administrative operatives disbanding because the problem of driving under the influence was solved? MADD brings in millions of dollars each year, and much of this money goes to pay very good salaries. About 19 cents for every dollar raised goes to for charitable works.

The Politicians: Entrepreneurs exist to make money. Politicians exist to get re-elected. When it is time to place an Intoxalock on a convicted driver’s vehicle, the profit potential for both is staggering. For the entrepreneurs (think ‘donors to you political campaign’), consider this passage:

“In the state of Wisconsin, service centers are getting between $75 and $150 for install, about $20/month to exchange the unit, and $50 to $100 for removal of the unit. That $20/month is just unplugging the thing, shipping it to the leasing company, and plugging in a new one that is supplied by the leasing company. Most states require the user to have this installed for more than one-year on their vehicle. Imagine the potential if you have many people in your area requiring these units!” Click here for the full article.

There is a recurring theme here. Money. Crime is a big business. Crime is a safe business, too. Economy booming? Crime is a great way to make money. Economy crashing? Crime is recession proof, and actually more profitable.

In my next article, we will answer a critical question: How did we end up with this poor performing legal system?

Working Outside of The Box

Another Monday at 10:56 a.m. My first client consult is scheduled to begin in four minutes, and I have been at work, off and on, since about 7:30 a.m.

My next appointment is at 1 p.m., and I have research and writing to finish. My case status staffing was completed a little over an hour ago. No court appearances are scheduled for today. So I put on my headset and begin the first appointment . . . just another day practicing law outside of the box.

Most lawyers get up in the morning, put on the lawyer suit of the day and head to the box, AKA, “the office.” Some have a long commute, some have a short one. Some work for a large firm with a large box, some work in a medium sized box and some have a small box.

The box is filled with people, phone systems, computers, printers, copiers, files, and coffee pots. Whether the law firm is a large box or a small box, most work outside of the courthouse is performed in the box. True, some work is done outside of the box, yet in most firms, 95% of the work is done in the box. The home office is an afterthought for work to be completed after a day in the box, or on weekends.

But I am outside of the box. W-a-a-a-a-a-y outside of the box. Let me explain.

I have been a practicing lawyer since 1989. I am a Board Certified Florida Criminal Trial Law Specialist with a practice limited to Florida criminal law in the state courts. Before 2004, I practiced law like most other lawyers – in the box. After Hurricane Ivan, we realized that our disaster recovery plan was a joke. The hurricane forced us to remake our entire firm, from the legal structure of the law firm right down to how we draft a motion. Later, when the cost of gasoline blew through the roof, we found that our clients preferred our disaster recovery mode of operation. Even the Florida Supreme Court encouraged the use of technology to save energy.

So here is how we practice law at Cobb Criminal Defense Law Firm today, outside of the box:

• We have two offices in two different counties. They are only used to meet with clients. I go into to one or the other office an average of three (3) hours per week.

• Our entire “on payroll” staff telecommutes the majority of the time. Phones are forwarded to a central telecommunications hub, the calendar is kept up to date online, all files are electronically stored in a central location, and we have a system for sending and receiving mail. Out of the box, we are actually more in touch with each other than most law firms.
  

• Most of our “co-workers” are actually outsourced colleagues in various different disciplines necessary to represent our clients. This enables us to build large legal defense teams at a fraction of the cost. We pass those savings on to our clients.
  

• I am writing this article as I normally work on non-court days: Wearing a pair of shorts, a tee shirt and a baseball hat while sitting in my “work” recliner. CNBC is usually on mute, but not today. Stumpy is asleep next to me, curled up in his doggie blanket. My telephone headset is right next to me, and I haven’t bothered to shave. No one on the other end of a phone line is concerned with how I am dressed, rather they are more interested in my experitse, as it should be.
  

• My computer is on my lap with twelve (12) screens across the bottom and six (6) tabs across the top ready for action. I am tied in to my calendar, my e-mail, my research projects, my client files and the courthouse. My tricked-out Gateway Convertible Notebook is a top of the line computer so advanced that I can literally sign documents with a digital pen directly on the screen. My secretary prints the hardcopies and we send what we can electronically to various recipients.
  

• “Box office appointments” or jail visits are scheduled on court days because I am in a suit anyway. When my life revolved around a daily commute to and from the box, I came to hate business attire. Now I enojy it.

The quality of life difference is profound. Our productivity has grown exponentially. Our clients love our service, and the convenience we are able to provide. We have made our technology easy for eveyone to use, and it pays us with more than money, it pays for itself with the most valuable asset one can have - time.

So now it is time to end this break, and get back to work, outside of the box. I will hit the ‘save’ button, open another screen and finish that exciting motion to have Florida's sentencing laws declared unconstitutional based on that Cunningham case from the USSC . . .  .