Articles Posted in Uncategorized

Cryptocurrencies are best described as a high risk, high reward investments. While crypto traders may be willing to accept the risks of trading such a volatile commodity, they need to be aware of a growing threat to their wallets: crypto theft and scams. Most cryptocurrencies run without connection to government or centralized agency, creating an aura of uncertainty and intrigue for crypto enthusiasts. For investors and crypto users, this may seem an exciting prospect, but it also means your cryptocurrency account is not insured by the United States government. If assets are stolen from your crypto account, your account is compromised, or your digital wallet manager goes out of business, the United States government has no obligation to repay your losses or help retrieve your money.

Scammers and thieves have also taken note of the lawlessness surrounding cryptocurrency, taking advantage of those unprotected or unfamiliar with common scams. According the Federal Trade Commission, almost 7,000 crypto traders lost over $80 million between October 2020 and March 2021. (FTC Report – Consumer Protection: Cryptocurrency buzz drives record investment scam losses) Crypto-based crimes are on the rise. In 2016, Crypto Head, an international organization dedicated to cryptocurrency research and education reported 340 total reported crypto-related crimes in the United States, compared to the 82,000 reported in 2020. (Crypto Head – Crypto Crimes, Comprehensive Overview)

Cryptocurrency scams and thefts can manifest in a variety of ways, ranging from large scale Ponzi schemes that trick wealthy investors, to more individualized cases involving blackmail. In May 2021, the SEC charged six department heads from BitConnect, a cryptocurrency that devised a scheme to defraud billions from investors and traders. BitConnect was widely traded, with 1.5 million people holding stock in the currency. In a two week period, the founders of the currency made off with over $2.5 billion in profits, causing the coin to fall from $432 per coin to just $26. (BitConnect Scam: The $2.6 BN Ponzi Scheme)

In order to protect themselves from cryptocurrency scams, consumers should follow the age old rule: avoid offers that seem to good to be true. Companies offering generous or multiplying profits with little risk are usually scams. Also, if business or individual insists payment be made using a cryptocurrency, it’s best to steer clear. Finally, be aware of schemes that promise a “better way to earn money” through crypto, you may just find yourself at the bottom of a crypto ponzi scheme.

The recent wave of crypto-related crime has caused serious trouble for lawmakers and the SEC as they look to play catchup with clever criminals. Congress is currently considering a bill that would require the Financial Stability Oversight Council to treat cryptocurrencies as financial markets. Additionally, corporations who hold cryptos and enjoy revenues from them would need to gain bank holding classification from the Federal Reserve. This bill represents a much larger plan for governments to reign in and regulate cryptocurrencies. If you have been charged with a cryptocurrency related crime, contact an experienced and competent criminal trial lawyer with an understanding of this developing field of law.

As voters and lawmakers continue the trend of relaxing Marijuana laws across Florida, a contentious debate has evolved surrounding the drug’s fourth amendment implications. Now that some uses of marijuana are legal, the question is whether a police officer smelling marijuana coming from your vehicle is enough to justify a search of the car. For now, the consensus is yes, the odor of Marijuana is enough evidence for the cops to search your vehicle.

The issue is decidedly more complex, striking at the heart of a decades-raging fourth amendment debate over what evidence is necessary to permit a warrantless search. Each case is different and an experienced Miami criminal law attorney should be consulted if possession of marijuana charges, or possession of marijuana with intent to distribute charges are filed against you.

A Fourth Amendment Issue

Under Florida law and in line with the fourth amendment, the general rule is that an officer must have at least an objectively reasonable basis for suspecting criminal activity is afoot before conducting a warrantless search.

Until recently, all forms of Marijuana were illegal in Florida. This made for relatively easy police work and a clear fourth amendment policy: if police smell marijuana coming from your vehicle, they can search it. For decades, this stood unchallenged.

The problem arose with the legalization of hemp, CBD, and medical THC. CBD and Hemp are both derived from the same plant as illegal cannabis, and both look and smell the same as cannabis. Someone smelling marijuana would have no way of determining whether the scent was legal hemp, or illegal cannabis. When the Florida legislator legalized hemp in 2019, police could no longer rely on their sense of smell to determine whether illegal activity was taking place. In 2019 and 2020, criminal defense attorneys were poised to argue that searches stemming from the odor of marijuana should be ruled unconstitutional.

Florida Law: A Changing Tide

Following the 2019 legalization of hemp, Miami and Florida law enforcement agencies and State Attorney’s adopted an “Odor Plus” standard. Under the new standard, cops were forced to detect the odor of marijuana, plus another indicator of illegal activity to overcome the probable cause standard and search a vehicle.

Across Florida, defense attorneys began arguing that arrests stemming from the odor of marijuana should be dropped for lack of probable cause under the fourth amendment. In 2020, Florida courts were split on the issue. The Twentieth Judicial Circuit Court of Florida held in August of 2020 that marijuana odor alone cannot be the sole basis for a probable cause search. See State v. Nord, 28 Fla. L. Weekly Supp. 511 (Fla. 20th Cir. Ct. Aug. 8, 2020 ). Just three months prior, the Ninth Judicial Circuit of Florida found differently, holding that an officer who smelled marijuana during a traffic stop had probable cause to conduct a warrantless search. State v. Ruise, 28 Fla. L. Weekly Supp. 122 (Fla. 9th Cir. Ct. Mar. 20, 2020).

Can Police Search Your Car Based on the Odor of Marijuana in 2021?

While this area of law is still expanding, the answer is yes, as of March 2021, police can search your car if they smell burnt marijuana. The Second District Court of Appeals held that the recent legalization of hemp was not enough to overcome the precedent of permitting warrantless searches based on the odor of marijuana.

Each case is unique, and this area of law is continuously evolving. An experienced Miami criminal trial attorney should be consulted to spot the potential weaknesses in the case against you.

In 2018, Senator Dick Durbin championed the landmark First Step Act, by being one of its lead authors and advocates. The Act was a massive step forward in United States prison reform. Among other things, the Act granted judges more judicial discretion in the sentencing of low-level, non-violent drug offenders, while simultaneously supporting inmate societal reintegration through targeted reentry programs.

Fast forward to 2021, Senator Durbin has now drafted the First Step Implementation Act of 2021, or S. 1014, which proposes implementation enhancements to the First Step Act. The 2021 Act builds off the groundwork laid in 2018. The Implementation Act corrects interpretation errors, changes key United States code safety valve qualifiers, proposes that the First Step Act apply retroactively to those who previously received stacked minimum sentences, allows judges more discretion in weighing the seriousness of the defendant’s record, expands transparency, expands inmate standing to complain in court, and allows for more leniency in the granting of juvenile sealing and expungement.

Senator Durbin’s First Step Implementation Act of 2021 has the full support and commendation of the Federal Sentencing Alliance.

What is the Federal Sentencing Alliance?

The Federal Sentencing Alliance is a national consortium of federal sentencing mitigation experts and legal technical writers, specializing in all related federal sentencing legal writing, federal plea agreement assessments, PSIR objections, U.S.S.C. Datafiles analysis, and federal sentencing mitigation investigation. The Federal Sentencing Alliance is a team of experts handling all aspects of federal sentencing mitigation, offering full investigative services nationwide at all stages of prosecution. The Federal Sentencing Alliance has published several books in this practice area, including numerous analyses of key provisions of the First Step Act of 2018 available online or from www.federalsentencingalliance.com.

The Federal Sentencing Alliance is passionate about assisting attorneys and clients in federal sentencing mitigation, as well as advocating for legislative changes to prison reform.

Ralph S. Behr

General Counsel, Federal Sentencing Alliance

Yesterday, the government made public the set of internal rules that are used to compile the list of names on the infamous No-Fly list. Now, the right of U.S. citizens to move among and between the States has its roots in the U.S. Constitution. The Commerce Clause, the Comity Clause, and the Due Process Clause are all the fundamental laws on the right to travel. When the government tells citizens of the U.S. that their right to unfettered travel has been removed, it gets civil and human rights groups, as well as business interests to take action. And it has.

The fact that air travel is only one of many ways to travel makes the No-Fly rules difficult to challenge constitutionally. Those alternative methods of transportation keep the No-Fly rules insulated from primary constitutional law, but not from the rule making Due Process Clause (which is the rule making law). In fact, the Due Process Clause is what is behind the apparent open view policy, which forced the Justice Department and the Transpiration Department to make the No-Fly list rules public in the first place. And although the rules have now been made public, there is no reason to believe that the screening process will become lenient, but at a minimum, the public will see more transparency in the process by which the who, why and when of how names are placed on the No-Fly lists and how they are removed.

As we know, security on domestic air travel is a government function. Screening, for national security purposes, was done under the procedures set out in a document, previously secret, identified as “Watchlisting Guidance.” The procedures were most recently updated in March 2013, and were not available to public scrutiny. All that changed when an online magazine, “The Intercept” obtained “Watchlisting Guidance” and revealed that they had the document. The response from Attorney General Holder was to make the document public. This response is in itself of no real consequence because the next day the internal document and its guidelines were reportedly re-issued and remains secret.

For you to see the skeletal documents that outline the purpose directed policy, one can refer to a 2011 document, which contains a set of rules that the F.B.I. disclosed previously. Other places to look for a quick read are an affidavit from Attorney General Eric Holder and the ruling from a Federal Court judge in Oregon. Attorney General Holder has maintained that the Watchlisting Guidance should remain out of public scrutiny, and the courts are most likely not to force the document into the public domain.

What is, however, of both practical and legal significance is that the government is yielding to transparency over secrecy, and still striving to maintain a high level of security for domestic and international air travel. For individuals, it means that a process and procedure may soon be in place for those who are banned from plane travel to have their status reviewed in a rational and considered forum. Either the government will accede to this or face continued legal battles for a process to review.

Ever wonder why some sentences are longer than others? Have you or one of your “peeps” (peoples) been sent to the big house for an extended stay, while others seem to breeze in and out with more major convictions? Wonder why or do you know?
The sentencing process, when one is before a judge and pleading for mercy, does not begin with a well suited lawyer, it begins with a well prepared lawyer. When was the last time any lawyer you know wrote a sentencing memorandum? I’ll wager never, unless I’m your lawyer.

Sentencing memorandums are the Holy Grail to a lighter sentence. Why you ask? Why indeed! The answer is that judges hate them because it means that an appeal is next, and to avoid an appeal most judges will sentence on the low end of the guidelines and leave for another defendant that old thrown away key sentence. Lawyers know this but don’t do it because it takes up time, time they need for golf or relaxation. So here’s what you do: If you are interviewing a lawyer for a criminal case ask her/him to include the promise of a sentencing memorandum in the retainer agreement. It can make a big difference when the pedal meets the medal and it’s time for a reservation in a State residence. Know now and you’ll do better. And, knowing more means buying my app on the Apple Store for you iPad and iPhone: CRIMINAL LAW 101 by Ralph Behr. As of July 2011 after only seven months there were over 1000 copies downloaded and only one buyer asked for their money back…..and he was from England!

Florida criminal statutes for cocaine possession have three basic levels: one for cocaine users (small personal amounts), a second level is for those who sell or give cocaine to another (for free or for money), that is called “delivery” or “sale”. The third level, which carriers a thirty –year sentence is for trafficking in cocaine. Drug trafficking statutes (whether for cocaine, marijuana trafficking, oxycodone trafficking in Florida, or any other controlled substance) are for those “in the business”. Trafficking starts when the amount of the drugs exceeds a weight or pill count set in the various drug trafficking laws in Florida criminal law. Drug trafficking enhancements, which can lead to a life sentence or even capital punishment when trafficking includes a death either by a participant or under the felony murder rule, armed trafficking and “king-pin” cocaine trafficking (significant amounts by weight of cocaine), Federal criminal drug trafficking laws carry similar enhanced punishments when weapons or guns are used, displayed or discharged. Florida criminal laws pertaining to controlled substances are similar for marijuana, so called “designer drugs”, methamphetamines ( and variants such as mixtures, salts and compounds), ecstasy, and other controlled substances as are listed in Florida drug laws. If you, or someone you know, have been arrested in Miami, Broward County (Fort Lauderdale) or Palm Beach (Boca Raton, Delray, and West Palm Beach) you should speak with a South Florida criminal defense lawyer.

The most common violations of probation are: moving out of state without permission, failure to pay money before the last month of probation, and another arrest after placed on probation. Not every violation is enough to get you before a judge; some are considered “technical” and are not punished. However, it is important to understand that only a judge can decide what is “technical” and what is “willful and substantial”. The Florida probation officer is required to report to the Judge any violation. Your Florida probation officer cannot forgive or overlook a violation: he/she must send a violation report to your Judge and request a violation of probation warrant be issued. The Judge will review the Probation Officer’s report (called a “request” for a violation of probation warrant) and decide if the alleged violation is serious enough to justify issuing a warrant to arrest you and bring you before the Judge. At the first appearance you either admit or deny the alleged violation. If you deny the violation you will return to court for a final hearing: similar to a trial but without a jury and with a much lower proof requirement. The biggest problem is that in Fort Lauderdale and Miami you do not get a bail or bond if you are picked up on a violation of probation warrant. You will remain in jail for ten days before your first appearance hearing (admit or deny) and then remain in jail until the judge sets a final hearing. Some people in South Florida (Fort Lauderdale, Miami, and Broward County) remain in jail for three to four months waiting for a final hearing. At the final hearing the State Attorney (prosecutor) must prove that you were advised of the conditions (see the probation statute for the list of minimum conditions imposed on all probationers in Florida) and the Judge must make a finding of fact. If the judge finds that a violation has occurred the Judge can do one of three things: Reinstate, reinstate and modify (add conditions or requirements or extend the term) or the Judge can sentence the violator to any term of jail or prison under the Florida Punishment Code for the charges that placed you in probation.