Category Archives: Criminal Defense

Pinellas County Sheriff Evidence Unit

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Courthouse, crime scene, evidence, jail, Pinellas County Sheriff Evidence Unit, prosecution Pinellas State Attorney's,
Pinellas County Evidence Unit in Florida

 

Crime scene evidence goes  here for prosecution of cases by the Pinellas State Attorney’s Office. Located across the street from the Courthouse and the jail.

Evidence Used Against You? Call Casey at 813-222-2220 .

 

Criminal Defenses | Statute of Limitations | Bank Fraud

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775.082, 775.083, 775.084, 655.0322(6), 655.0322(5), Fraud, Statute of Limitations, defrauding a financial institution, false statement,

Defrauding a Financial Institution
Bank Fraud
Criminal Defense Attorney
Lawyer
Tampa Criminal Defense Lawyer / Attorney has been researching the Statute of Limitations as applied in Florida Courts. Here is the latest case I found. The court threw out most of the charges when a violation of the time provisions under the Florida Statute of Limitations. The defendants were charged in  a “downpayment assistance” program where it was alleged they tricked various lenders into making loans on residential properties located in Florida. The fraud was supposed to make lenders believe buyers had money for a down payment when they did not. The properties were purchased between February 2006 and October 2007.  The grand theft charges for defrauding a financial institution were based on a false statement in violation of section 655.0322(5), Florida Statutes (2005) in mortgages obtained on the properties. The prosecutor charged the defendants with “one count of aggravated white-collar crime, in violation of section 775.0844, Florida Statutes (2005), a first-degree felony (count one), and eleven counts of defrauding a financial institution.”
 

We have posted the complete decision here at our Tampa Criminal Defense – Bank Fraud resource. 

 
A number of these offenses were linked to offenses outlined in the original criminal charges filed earlier in the case. These claims involved , Florida Statutes section 655.0322(6) (2005) that states:
 
Any person who knowingly executes, or attempts to execute, a scheme or artifice to defraud a financial institution, subsidiary, or service corporation, or any other entity authorized by law to extend credit, or to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, subsidiary, service corporation, or any other entity authorized by law to extend credit, by means of false or fraudulent pretenses, representations, or promises, is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The defendants argued that some charges were “brought beyond the three-year statute of limitations applicable to second-degree felonies.” The court ruled “[T]hese counts alleged new crimes and are barred by the statute of limitations.”  “The white-collar charge was based on thirteen prior acts of defrauding a financial institution alleged to have been committed from February 1, 2006 through October 31, 2007.  This makes February 1, 2010, the final cut-off date as to all predicate offenses included in the charge.  The third amended information was filed on January 15, 2010, rendering one of the charges timely. The rest of the charges were thrown out.

Case Excerpt:


“The fact that the individual (predicate) offenses would have been untimely if brought as independent charges does not affect the timeliness of the prosecution for aggravated white-collar crime.  This is a continuing offense, based on the commission of numerous predicate acts. Because of the large number of predicate acts required to establish the offense, the Legislature obviously gave the State additional time to include prosecution for offenses which might have otherwise been untimely.  The same result has been reached in the RICO context.  See Cheffer v. Judge, Div. ‘S,’ 15th Judicial Cir.,  614 So. 2d 632, 633 (Fla. 4th DCA 1993) (holding RICO prosecution based on predicate acts of trafficking illegal drugs not barred by statute of limitations, although predicate acts were individually barred by four-year statute of limitations, because RICO prosecution was subject to five-year limitation).  Because count one was filed inside the end date of the statute of limitations, the count was timely, and the trial court erred in quashing this count of the information.”


Fraud Charges? Call Casey at 813-222-2220

Decryption of Hard Drive Blocked

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TrueCrypt, Self Incrimination, password, hard drive, hard disk, Fifth Amendment, encryption, encrypt, decryption, 5th Amendment, decrypt,

TrueCrypt and the Fifth Amendment
Password Decrypt Hard Drive

 TrueCrypt and the Fifth Amendment

Federal Defense Attorney just won a case where the defendant was ordered to decrypt a hard drive the government had lawfully seized. Feds tried to force a defendant to give up a password used to encrypt several hard drives using TrueCrypt.

Case Excerpts: “The Fifth Amendment protects Doe’s refusal to decrypt and produce the contents of the media devices because the act of decryption and production would be testimonial . . . .”

 

“We hold that Doe properly invoked the Fifth Amendment privilege. In response, the Government chose not give him the immunity the Fifth Amendment and 18 U.S.C. § 6002 mandate, and the district court acquiesced. Stripped of Fifth Amendment protection, Doe refused to produce the unencrypted contents of the hard drives. The refusal was justified, and the district court erred in adjudging him in civil contempt. The district court’s judgment is accordingly REVERSED”

Congrats to Attorney Chet Kaufman 

Decryption an Issue? Call Casey at 813-222-2220

Electronic Discovery in Criminal Cases – Principles

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ESI, electronic discovery, Electronic Discovery, Criminal ,

Electronic Discovery, Criminal
Electronic Discovery in a Criminal Case 

ESI Discovery in Federal Criminal Cases

Federal Criminal Defense Attorney just received an excellent checklist and  list of principles to be applied in electronic discovery in criminal cases. Thanks to our Federal defense lawyer for this excellent outline. Below the principles are a quick ESI checklist. “Today, most information is created and stored electronically. The advent of electronically stored information (ESI) presents an opportunity for greater efficiency and cost savings for the entire criminal justice system . . . To realize those benefits and to avoid undue cost, disruption and delay, criminal practitioners must educate themselves and employ best practices for managing ESI discovery.” Excerpt from Introduction to Recommendations for ESI Discovery in Federal Criminal Cases .

Principle 1: Lawyers have a responsibility to have an adequate understanding of electronic discovery.
Principle 2: In the process of planning, producing, and resolving disputes about ESI discovery, the parties should include individuals with sufficient technical knowledge and experience regarding ESI.
Principle 3: At the outset of a case, the parties should meet and confer about the nature, volume, and mechanics of producing ESI discovery. Where the ESI discovery is particularly complex or produced on a rolling basis, an on-going dialogue may be helpful.
Principle 4: The parties should discuss what formats of production are possible and appropriate, and what formats can be generated. Any format selected for producing discovery should maintain the ESI’s integrity, allow for reasonable usability, reasonably limit costs, and, if possible, conform to industry standards for the format.
Principle 5:When producing ESI discovery, a party should not be required to take on substantial additional processing or format conversion costs and burdens beyond what the party has already done or would do for its own case preparation or discovery production.
Principle 6: Following the meet and confer, the parties should notify the court of ESI discovery production issues or problems that they reasonably anticipate will significantly affect the handling of the case.
Principle 7: The parties should discuss ESI discovery transmission methods and media that promote efficiency, security, and reduced costs. The producing party should provide a general description and maintain a record of what was transmitted.
Principle 8: In multi-defendant cases, the defendants should authorize one or more counsel to act as the discovery coordinator(s) or seek appointment of a Coordinating Discovery Attorney.
Principle 9: The parties should make good faith efforts to discuss and resolve disputes over ESI discovery, involving those with the requisite technical knowledge when necessary, and they should consult with a supervisor, or obtain supervisory authorization, before seeking judicial resolution of an ESI discovery dispute or alleging misconduct, abuse, or neglect concerning the production of ESI.
Principle 10: All parties should limit dissemination of ESI discovery to members of their litigation team who need and are approved for access, and they should also take reasonable and appropriate measures to secure ESI discovery against unauthorized access or disclosure.

Special Thanks to the Federal Defender’s Office and The Joint Electronic Technology Working Group (JETWG) that was created to address best practices for the efficient and cost-effective management of post-indictment ESI discovery between the Government and defendants charged in federal criminal cases.

ESI Discovery Checklist. A one-page Checklist for addressing ESI production issues.

ESI Discovery Production Checklist

Is this a case where the volume or nature of ESI significantly increases the case’s complexity?

Does this case involve classified information?

Does this case involve trade secrets, or national security or homeland security information?

Do the parties have appropriate technical advisors to assist?

Have the parties met and conferred about ESI issues?

Have the parties addressed the format of ESI being produced? Categories may include:

  • Investigative reports and materials
  • Witness statements
  • Tangible objects
  • Third party ESI digital devices (computers, phones, etc.)
  • Photos, video and audio recordings
  • Third party records
  • Title III wire tap information
  • Court records
  • Tests and examinations
  • Experts
  • Immunity and plea agreements
  • Discovery materials with special production considerations
  • Related matters
  • Discovery materials available for inspection but not produced digitally
  • Other information

Have the parties addressed ESI issues involving:

  • Table of contents?
  • Production of paper records as either paper or ESI?
  • Proprietary or legacy data?
  • Attorney-client, work product, or other privilege issues?
  • Sensitive confidential, personal, grand jury, classified, tax return, trade secret, or similar information?
  • Whether email transmission is inappropriate for any categories of ESI discovery?
  • Incarcerated defendant’s access to discovery materials?
  • ESI discovery volume for receiving party’s planning purposes?
  • Parties’ software or hardware limitations?
  • Production of ESI from 3rd party digital devices?
  • Forensic images of ESI digital devices?
  • Metadata in 3rd party ESI?
  • Redactions?
  • Reasonable schedule for producing party?
  • Reasonable schedule for receiving party to give notice of issues?
  • Appropriate security measures during transmission of ESI discovery, e.g., encryption?
  • Adequate security measures to protect sensitive ESI against unauthorized access or disclosure?
  • Need for protective orders, clawback agreements, or similar orders or agreements?
  • Collaboration on sharing costs or tasks?
  • Need for receiving party’s access to original ESI?

Preserving a record of discovery produced?
Have the parties memorialized their agreements and disagreements?
Do the parties have a system for resolving disputes informally?
Is there a need for a designated discovery coordinator for multiple defendants?
Do the parties have a plan for managing/returning ESI at the conclusion of the case?

Electronic Discovery in a Criminal Case? Call Casey at 813-222-2220 .

Criminal Defense for University of South Florida Students and Faculty

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Criminal Defense for USF Campus Students, Visitors, and Faculty

Tampa Attorney Casey Ebsary is available to help with Criminal Defense for University of South Florida Students and Faculty. At USF there is  Student Code of Conduct that the University officials attempt to enforce, even for activities that are not on campus. There are 23 separate offenses that can cause the Office of Student Rights and Responsibilities to take action against a Student.  Criminal Defense Help is available to prepare for these disciplinary proceedings. In fact, I just spent a day helping a student. Initially, one University does not allow counsel to appear, but we still can help prepare a strategy. The deadlines to respond to these proceedings are tight. The criminal charges that cause the University to take action may not even have been filed. The Office of Student Rights and Responsibilities enforces, “USF System rules, policies and regulations.” Notably, ” Students accused of a crime may be prosecuted under the appropriate jurisdiction and also disciplined under the Student Code of Conduct.”

 

USF Criminal Defense, Authority and Jurisdiction of the USF System, Criminal Defense, Tampa Attorney

USF Criminal Defense, Authority and Jurisdiction of the USF System

USF Student Code of Conduct

Discipline for Off Campus Activity

 
“USF System jurisdiction and discipline extends to conduct which occurs on USF System premises or which adversely affects the USF System community and/or the pursuit of its mission. Specifically, USF System officials may initiate disciplinary charges for conduct off campus when the behavior relates to the good name of the USF System; the integrity of the educational process; or the safety and welfare of the USF System community, either in its public personality or in respect to individuals within it; or violates state or federal law.”
 
Criminal Defense for University of South Florida Students and Faculty



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Discipline For Non Arrest Events

 
“USF System disciplinary proceedings may be instituted against a student charged with conduct that potentially violates both the criminal law and the Student Code of Conduct without regard to the pending civil or criminal litigation in court or criminal arrest and prosecution. Proceedings under the Student Code of Conduct may be carried out prior to, simultaneously with, or following civil or criminal proceedings off campus at the discretion of the Office of Student Rights and Responsibilities. Determinations made or sanction(s) imposed as a result of the Student Code of Conduct process shall not be subject to change because criminal charges arising out of the same facts giving rise to violation(s) of USF System policies were dismissed, reduced, or resolved in favor of or against the criminal law defendant.” 
 

Student Help Needed? Call Casey at 813-222-2220

 

Law Office of W.F. ”Casey” Ebsary Jr

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Address: 2102 W Cleveland St, Tampa, FL 33606
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911 Recorded Call Violates Florida Wiretap Statute

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Wiretap, 934.03(2)(g)2

911 Call, Wiretap, 934.03(2)(g)2
Wiretap 934.03(2)(g)2

 

911 Recording Violates Wiretap Statute

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:

 

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

Mail Fraud Conviction Overturned – Florida Federal Criminal Defense Attorney Reports

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Mail Fraud 18 U.S.C. § 1957

Tampa Federal Criminal Defense Attorney was just informed that a Florida Lawyer’s Mail Fraud conviction in a United States District Court in Florida was eviscerated by the 11th Circuit:

“A jury convicted Joseph T. Lander on mail fraud and money laundering charges related to two separate fraudulent schemes, and he appealed. The Eleventh Circuit held in the resulting appeal that the material variance between the proof offered by the Government at Lander’s trial and the allegations in support of Count Two of the indictment substantially prejudiced Lander’s ability to prepare his defense. It reversed Lander’s conviction and vacated his sentence on that count, and reversed as well his convictions on eleven money laundering counts, as they depended on conviction on Count Two. It affirmed Lander’s convictions as to the other scheme to defraud, and rejected Lander’s other assertions of error.
Lander worked as an attorney in Dixie County, Florida, where he practiced law and served as the county attorney. A group of real estate developers planning a project called River Shores at Jena in Dixie County retained Lander to help guide their project through the county’s regulatory process.
When they initially met Lander they did not know he was the county attorney, but they quickly became aware of this fact through their meetings with him. In order to “give a level of security to the prospective buyers that [the developers] would finish the development,” the developers gave Lander $820,000 in August of 2005 to be held in trust to draw against as the developers incurred infrastructure expenses.
Lander then opened an account called the “Lander Law Firm—Special Account” to hold the developers’ funds. But, not all of these funds helped complete River Shores. For example, Lander made a $140,980 withdrawal from the account to buy an island off the western coast of Florida. He also used the money for various other personal expenses. These personal withdrawals continued until December of 2007 when Lander depleted and closed the account.
While Lander was making personal draws on the account, he also fulfilled two of the requests from the developers for money from the account. Lander mailed a $200,000 cashier’s check drawn from the account on August 17, 2005. In early 2006, Lander fulfilled another request for $300,000.
According to one of the developers, he did not question that Lander still held the other $320,000 because Lander remitted these two requests in a timely manner. When the developers made a third request for funds, Lander denied it and informed them that the county commissioners were not comfortable with the project and the rest of the money would be released when they finished the project.
This scheme was the basis for Count Two of the indictment, which charged a violation of the mail fraud statute. The indictment met the requirement for a material misrepresentation by alleging that Lander “falsely represented to certain developers having business before Dixie County that the developers were required to pay a performance bond to Dixie County.”
The Eleventh Circuit held, however, that the evidence at trial disproved that Lander made this misrepresentation. For example, when one of the developers was asked whether Lander ever represented to them that Dixie County required a performance bond, he responded: “Not that I recall.”
Another one of the developers stated that Lander never told her that the developers needed to post a performance bond. And he Government could point to no place in the record where the evidence at trial supported the charge that Lander misrepresented to the River Shores developers that they needed to post a performance bond.
Without this misrepresentation to support the River Shores scheme to defraud, the Government shifted its trial strategy. During its closing argument, it appeared to rely on Lander’s representations to the developers that he could make sure their project moved through the regulatory process.
The Eleventh Circuit held, as a result, that the misrepresentation the Government relied on did not coincide with the allegations of the indictment and represented a material variance from the indictment. The Court concluded moreover that this variance substantially prejudiced Lander, in that he was not informed of the charges against him and was unfairly surprised by the evidence offered at trial.”
Thanks to the FPD Orlando Office for the tip.
Case Excerpts:
“The grand jury returned a twenty-one count superseding indictment against Lander.  Sixteen of those counts concern us here.  Count Two of the indictment relates to the River Shores Scheme and is explained more fully below.  Counts Four through Fourteen charge Lander with money laundering by engaging in a monetary transaction in property of a value greater than $10,000 derived from mail fraud, in violation of 18 U.S.C. § 1957.  These counts are based on various withdrawals Lander made from the Lander Law Firm – Special Account.”
“Lander argues before this court, as he did in his Motion for Judgment of Acquittal, that the facts proved at trial to support the River Shores mail fraud charge (Count Two) materially varied from the allegations of the superseding indictment.  According to Lander, this variance substantially prejudiced his rights and his conviction on this count should be reversed.  We agree.”
““The standard of review for whether there is a material variance between the allegations in the indictment and the facts established at trial is twofold:  First, whether a material variance did occur, and, second, whether the defendant suffered substantial prejudice as a result.”  United States v. Chastain, 198 F.3d 1338, 1349 (11th Cir. 1999) (citing United States v. Prince, 883 F.2d 953, 959 (11th Cir. 1989)).”
“We have called an allegation of a variance in essence “one form of challenge to the sufficiency of the evidence.”  United States v. Jenkins, 779 F.2d 606, 616 (11th Cir. 1986).  “A ‘variance’ occurs when the evidence at trial establishes facts materially different from those alleged in the indictment.”  United States v. Caporale, 806 F.2d 1487, 1499 (11th Cir. 1986) (citing United States v. Johnson, 713 F.2d 633, 643 n.9 (11th Cir. 1983)).”
“To find substantial prejudice, we have ordinarily considered whether “the proof at trial differed so greatly from the charges that appellant was unfairly surprised and was unable to prepare an adequate defense.”  United States v. Calderon, 127 F.3d 1314, 1328 (11th Cir. 1997) (citations omitted).”
“Next, we must decide whether this variance substantially prejudiced Lander. We hold that it did.  As our precedent explains, the rationale behind the material variance rule is that the accused be informed of the charges against him and that he not be surprised by the evidence offered at trial.  Thompson v. Nagle, 118 F.3d 1442, 1453 (11th Cir. 1997) (citing Berger v. United States, 295 U.S. 78, 82, 55 S. Ct. 629, 630 (1935)).  This justification is grounded in the fundamental requirement that an indictment “apprise[] the defendant of what he must be prepared to meet.”  Russell v. United States, 369 U.S. 749, 763-64, 82 S. Ct. 1038, 1047 (1962) (citations omitted) (quotation marks omitted). “
Mail Fraud Indictment? Call 813-222-2220 .

Cell Phone and GPS Location Data in Criminal Prosecutions

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18 U.S.C. § 2516, GPS, warrantless GPS surveillance, Electronic Communications Privacy Act, privacy, Cell Phone Location Data
Cell Phone and GPS Location Data
Board Certified Criminal Trial Lawyer at Law Office of W.F. ”Casey” Ebsary, Jr. notes recent developments in Cell Phone Location Data used in Criminal Prosecutions. When the government wants to track an individual’s location through his or her cell phone, it submits an application to a judge seeking an order compelling a company to provide access to location data. Cell phones generate several types of data that can be used to track their users’ past or present locations with various degrees of precision.

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Pardon | Seal | Expunge

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Presidential Pardons

Presidential Pardons

Presidential Pardons are at 22 and counting under President Barack Obama as of November 2011. A Tampa Bay, Florida resident benefited from a “presidential pardon this week [and]  called his earlier felony a “youthful indiscretion” that happened after he got mixed up in the wrong crowd.”

Florida Update 2020

Florida Clemency Board Blocks Pardons

As of July, 2020, “On July 1, there were 24,400 people waiting for a hearing before the Clemency Board. Wednesday’s agenda had just 82 cases.”

https://www.wcjb.com/2020/12/16/floridas-clemency-board-grants-11-pardons/

As of August 2020 , the clemency board had a backlog of more than 24,000 cases.

https://news.wfsu.org/state-news/2020-09-23/florida-clemency-board-blocks-pardon-blocked-for-felons-rights-leader

Pardon vs. Seal | Expunge

According to the United States Department of Justice (USDOJ) “[w]hile a presidential pardon will restore various rights lost as a result of the pardoned offense and should lessen to some extent the stigma arising from a conviction, it will not erase or expunge the record of your conviction.

Free Florida Sealing and Expunge Web App

We have place a free Florida Sealing and Expunge Web App on SealMyFile.com. Check and See If You Are Eligible To Have Your Record Sealed Or Expunged. The contact The Law Office of Board Certified Criminal Trial Lawyer W.F. “Casey” Ebsary, Jr. at 813-222-2220.

 

Presidential Pardon Requirements

 

Federal Offense Only

“Under the Constitution, only federal criminal convictions, such as those adjudicated in the United States District Courts, may be pardoned by the President. ” Furthermore, “if you are seeking clemency for a state criminal conviction, you should not complete and submit [a Presidential Pardon] petition. Instead, you should contact the Governor or other appropriate authorities of the state where you reside or where the conviction occurred (such as the state board of pardons and paroles) to determine whether any relief is available to you under state law. ”

Five Year Waiting Period

“Under the Department’s rules governing petitions for executive clemency, 28 C.F.R. §§ 1.1 et seq., an applicant must satisfy a minimum waiting period of five years before he becomes eligible to apply for a presidential pardon of his federal conviction. “

Application Tip:

When completing the application, “you should state the specific purpose for which you are seeking pardon and, if applicable, attach any relevant documentary evidence that indicates how a pardon will help you accomplish that purpose (such as citations to applicable provisions of state constitutions, statutes, or regulations, or copies of letters from appropriate officials of administrative agencies, professional associations, licensing authorities, etc.). In addition, you should bear in mind that a presidential pardon is ordinarily a sign of forgiveness and is granted in recognition of the applicant’s acceptance of responsibility for the crime and established good conduct for a significant period of time after conviction or release from confinement. ”

USDOJ Has Penalty for False Statements

“The failure to fully and accurately complete the application form may be construed as a falsification of the petition, which may provide a reason for denying your petition. In addition, the knowing and willful falsification of a document submitted to the government may subject you to criminal punishment, including up to five years’ imprisonment and a $250,000 fine. See 18 U.S.C. §§ 1001 and 3571.”

Source:  https://www.tampabay.com/news/business/presidential-pardon-brings-relief-stirs-regret-wesley-chapel-man-tells/1203163


https://www.justice.gov/pardon/pardon_instructions.htm

Pardon?  Seal? Expunge? Call 813-222-2220

Criminal Record Expunge Sealing Video | Florida

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Seal Expunge Florida Record

Seal Expunge Video – Arrest in Florida? Your Criminal Record Does Not Have To Follow You Forever. 1 minute video on help available to Remove an arrest record through a criminal record expungement or record sealing in Florida. Call 813-222-2220.

Learn More here:
https://expungelaw.com/

Expunge Sealing Video | Attorney Lawyer in Florida