South Florida Criminal Defense Lawyer Blog

Fort Lauderdale police agencies have technology to read license plates. Once read, the plates are matched against outstanding traffic tickets. In addition, the owner’s name is matched against outstanding criminal warrants. At what point does constitutional rights run up against and, in effect, trump technologies that enhance surveillance? When does directed and focused surveillance of known criminal activities cross a constitutional barrier of blanket monitoring of citizenry?

The Los Angeles Police Department has 240 car-mounted scanners and 30 fixed scanners. The Los Angeles Sheriff’s Department (a separate police agency) has 84 vehicles with scanners and 47 fixed-location scanners.

The public debate on the use and sale of the information is being addressed in California. Jerry Hill, a California State Senator has introduced a bill that would rein in reliance on digital monitoring. The bill would prohibit selling the results of universal scanning by requiring permission of those (all of us) who are tracked by police cars scanning and scan cameras installed in the street.

The issue is headed for civil court in California. A private corporation, Vigilant Solutions Inc., one of the nation’s largest privately owned scanners of street activity has sued the State of Utah when the State took steps to ban license plate scanning. Vigilant’s affiliate, Digital Recognition Network sells access to an accumulated two billion scans. Vigilant recently offered police agencies in Arizona free license plate scanners, anticipating they would own the right to sell the results of the scanning. Vigilant’s offer is contingent and requires a minimum of 25 million scans before providing free scanners to the police.

The friction point is between free speech rights and search and seizure. The debate focuses on whether a scan is a search and should be limited by the constitution’s requirement of reasonableness. By analogy, a parent has a duty to supervise and know where their child goes and does. The law imposes such a duty on persons in loco parentis relation to others, such as teachers with students and jailers with those in custody. There is no duty on the part of the government to monitor and observe lawful acts. Where there is no duty, there is no legal right to observe, monitor, record and then sell information of a person’s daily activities. The issue is topical in South Florida where traffic cameras and police cars observe and record traffic.

The History Channel‘s broadcast of “Weather Warfare” focused international interest in The State of the Nation’s demand that the International Criminal Court begin a criminal investigation into what I have dubbed “The ChemtrailGate Conspiracy.” The allegations are that ChemtrailGate conspirators are spraying sulfuric acid and aluminum compounds into the upper atmosphere in criminal violation of international treaties prohibiting such acts. Chemtrails differ from Contrails (Condensation Trails). Those involved in Chemtrail argue that there is commercial value in weather modification and that they have a right to pursue this as a business venture. Some Chemtrail partners are joined with and sharing costs with the U.S. Department of Defense. The government’s interest is exploring the use of weather modification in war. Another stated purpose of Chemtrail is to reduce global warming. David Keith, author of “A Case for Climate Engineering” appeared on the Colbert Report to explain how this geo-engineering theory will “help” reduce global warming. GeoEngineering Watch in support of the conspiracy charges posted an article on January 15, 2014, see: Chemtrails: Covert Crimes Against Humanity.

If the International Criminal Court moves on these charges, it would be a historic moment in the use of criminal laws to protect individuals from exposure to toxic chemicals by government contractors and corporations.

United States prosecutors have declined to file charges against the (alleged) ChemtrailGate conspirators.

The legal theory behind the allegations would create, if framed as such, a new area of criminal law: Aggravated Battery by Toxic Chemical. Experts in criminal law believe such a legal theory is valid. It would require a court of international jurisdiction, such as the International Criminal Court, to prosecute the alleged conspirators and name individuals exposed to the chemical agents as victims.

Here is a backgrounder on the law of criminal battery that would form the basis of such a prosecution: A battery is defined as an unlawful touching. Aggravated Battery elements require proof of serious bodily harm. An aggravator is defined as a weapon or device used to inflict the harm. The element of specific intent, defined as the fully formed conscious intent to cause the battery on the purported victim, can be met by the criminal concept of criminal negligence. Examples of criminal negligence are manslaughter and reckless endangerment. In any prosecution for Aggravated Battery by Toxic Chemical, the aggravator would be the toxic chemical used against individual victims. There currently exist provisions in federal and state criminal laws for prosecutions of individuals using poison to inflict harm on their victim.

If the allegations are substantiated and the legal theories supported by the International Criminal Court, it would require a referral from the United Nations. A referral is required for the Court to begin the indictment process against the individual and corporate actors reportedly associated with the ChemtrailGate Conspiracy.

The International Criminal Court in The Hague was created by the Rome Statute of The International Criminal Court of 1998. The International Criminal Court is not part of the United Nations World Court, but is a forum created by treaty among 120 founding nations. It is a permanent treaty-based international court established to prosecute individuals outside of their nation of origin. Because the United States is not a signor to the Rome Statute creating the ICC it is deemed unlikely that any prosecutions of U.S. based corporations or U.S. citizens will be undertaken. The International Criminal Court is not a part of the United Nations World Court. The World Court deals with international controversies of a commercial nature and was not created to investigate and prosecute crimes against humanity and genocide. The International Criminal Court has prosecuted charges that arose from events in Bosnia and against individuals involved in genocide in Africa in recent years. Investigations into the Chemtrail Conspiracy have been undertaken by Non-Governmental Organizations (NGO’s) and have not been supported by the United States Department of Justice.

Asset forfeiture is a civil process, not a criminal punishment. By that legal fiction, prosecutors can strip assets from anyone who is arrested. The arresting agency can seize property with the objective of taking title from its owner. The lead case on forfeiture statutes, Bennis v. Michigan, came from the United States Supreme Court in the early 1990’s. In that case, the government seized, and ultimately won title to an automobile owned by the wife of a man who used her car for a sporting event with a prostitute. Even though the wife did not know or approve of her husband using her car for a tryst with a prostitute, the car was sized and the forfeiture upheld.

Here is how it works in Fort Lauderdale (Broward County), throughout most of the other state courts, as well as in Federal criminal prosecutions. The arresting agency (for example the Fort Lauderdale Police Department) stops a car, searches the car, and arrests the driver for possession of cocaine. Because the car was the “fruit or instrumentality” of a crime a forfeiture action is filed in civil (not criminal) court. Even before the defendant’s criminal case is resolved, the car has been seized, now it is parked in a storage lot, storage fees accumulate, and civil lawyers for the City of Fort Lauderdale file a law suit naming the car as the respondent. The owner of the car, after posting an amount equal to the value of the car, and only AFTER posting the money, can respond to the lawsuit. Most everyone loses his or her property before the criminal matter has been resolved. It is a big money maker for local government as well as for law firms that take a piece of the action for themselves.

Now Minnesota has adopted a new law that changes their forfeiture process a bit. The Minnesota State Legislature took a look at this and the forfeiture programs in their state and made some changes, which were long overdue. Now, in Minnesota, the government can only take property IF there is a criminal conviction. The forfeiture law in Florida, and in most states, places the burden on the property owner to prove the property was not used in or the proceeds of a criminal act. The Minnesota law shifts the burden from the owner to the state. In most states, law enforcement agencies seize property from people and then negotiate a settlement for the property to be returned.

The wizened and savvy of the criminal world have for the past twenty years chosen to rent their homes, lease their cars, rent airplanes for flying in Marijuana. Leased property is not subject to seizure. Florida law has given banks and leasing companies a free pass to lease without risk of forfeiture. The only exception, and one that is never alleged, is that the lessor had actual knowledge that the property was to be used in a crime. In my experience from practicing criminal defense in Florida and New York, this has never occurred. The abuses associated with asset forfeiture have become a major feature of this area of law. The punitive aspect has been subsumed in the mire of horror stories and bad judgment of local governments. Forfeiture has become a legal cottage industry.
Law firms bid for the asset forfeiture work in their municipality; providing free legal representation in return for sharing the bounty of seizures. The Minnesota reforms make sense. Not only does the crime have to be first proven and a conviction obtained, before the property can be forfeited, but also the burden has shifted, requiring the government to prove the property was used in a criminal undertaking. In Florida, the owner must prove a negative: that the property was not used in the commission of a crime.

According to the United Nations Office on Drugs and Crime, the total amount of money laundered worldwide in one year is $2 trillion U.S. Dollars. That is 3% of the world’s GDP (Gross Domestic Product) in U.S. dollars. To put that in perspective: it is an amount equal to the the Russian Federation’s total GDP. Russia is the world’s ninth largest economy.

In the U.S., money laundering is defined in 18 U.S.C.A § 1956, the statute is titled: Laundering Monetary Instruments. To be convicted of money laundering in federal criminal court, the government must prove the following:

1. You knowingly conducted or attempted to conduct a financial transaction;
2. You knew that the money or property involved in the transaction were the proceeds of some kind of unlawful activity;
3. The money or property did come from an unlawful activity, and

4. You were involved in the financial transaction with the intent to promote the carrying on of that specified unlawful activity (including avoiding paying taxes or brining money into the U.S. without reporting it).

Source: 11th Circuit Pattern Jury Instruction 74.1
 – Money Laundering: Promoting Unlawful Activity 18 U.S.C. § 1956 (a)(1)(A)(i)

Locally this month, the U.S. Attorney in Miami indicted Eduardo Perez de Morales on a 238 million dollar money laundering charge. Many lawyers in South Florida believe the legal basis of the prosecution can be challenged, and if handled correctly the matter dismissed or better; won at trial. His brother, Jorge Perez de Morales, is wanted by the FBI and is reported to be living in Cuba. Local criminal defense lawyers believe him to be in the Dominican Republic. Their company, Caribbean Transfers, Inc., was a transfer agency for over 150,000 clients, where money from expatriates living in the United States sent money to family back home in several Caribbean and South American countries. Caribbean Transfers, Inc. closed in 2012. The indictment began as a Medicare Medicaid fraud indictment and blossomed into an international money laundering case.

Money laundering prosecutions and investigations often morph into international matters. The United Nations can, and does, refer related crimes to the World Criminal Court in The Hague. The World Criminal Court is increasing its prosecution of terrorist activities, crimes against humanity, etc. According to the United Nations Global Counter-Terrorism Strategy (adopted by the United Nations General Assembly in 2006), the Miami arrest is part of the following objective: To curb money laundering and the financing of terrorism by attacking the economic power wielded by criminal organizations in third world countries. Emerging economies are the primary targets of opportunity for money laundering and have been targeted by major money launderers: drug cartels, stolen government funds, etc.

Although money laundering goes on worldwide it is a growth industry in second world nations. The current “hot spot” for money laundering is Panama. Panama has a history of moving toward favoring money launderers. Recall the antics of Panama’s former President Noriega: He was kidnapped by United States military operatives and spirited by plane to stand trial. He was convicted in the United States, sentenced, and then shipped to France where he was convicted again. The reason is he had taken over several United States chartered banks in Panama City and made it known to drug cartels in South America that the newly nationalized banks would handle money laundering transactions at a discount. His life took a turn for prison when he did that. However, events of recently as 2014 have revived Panamanian banks’ willingness to enter into money laundering, again.

Abraham Lincoln suspended habeas corpus during the United States Civil War. Japanese Americans were interred during World War II. There are always good reasons to side step the 4th Amendment when we perceive real threats to our way of life. This topic is again in U.S. Federal Courts and it has to do with a confrontation between the Solicitor General, Mr. Verrilli, and Senator Udall of Colorado and Senator Wyden of Oregon. They wrote to ask that the government correct its monitoring actions to comfort with the Patriot Act and U.S. criminal laws. In the Senators’ letters they complained that the Justice Department was intercepting Americans’ international emails and phone calls, domestically intercepting that is, and doing it without notice. Notice is required by law, but ignored.

The United States Supreme Court suggested that the real threat to our way of life is not from our enemies but from our elected public officials and there’s something to that. The issue arises today when the NSA gets hauled into Court for listening to conversations of Americans; ostensibly to look for terrorist plots arising from within.

The Supremes reflected that perhaps there are other effective ways to save our way of life from terrorists. We agree, do you?

The constitutional guarantees freedom from unreasonable searches and seizures. Searches, not supported by affidavit, are prohibited. The Obama administration argues that national security needs should trump the fourth amendment. It all came together before United States Supreme Court and the resolution is neither satisfactory nor clarifying.

Judges routinely sign warrants for searches of people’s homes, papers, and surveillance on their communications. In criminal courts a motion to suppress is the legal remedy for an unlawful search or seizure. The analysis uses the totality of the circumstances test. In the evidentiary hearing, the burden is on the government to prove by a preponderance of the evidence that the search and seizure was reasonable. What the security agencies wish to substitute is the finding of a judge whose deliberations are secret and sources protected. When the National Security Administration listens in on communications, it can do so without a warrant and without judicial review: that was litigated before the United States Supreme Court in the Clapper case. There are more cases coming but the issue remains as current as today’s headlines.

On one side of the issue is the American Civil Liberties Union, when they wrote (when addressing the letters from Senators Udall and Wyden): “What these letters highlight is the extent to which the government was able to take advantage of the fact that the Supreme Court, as much as the American public, was operating in the dark about the scope of the statute and the way the government was using it.” And, on the other side was the Justice Department, which argued that its activity of scanning international calls and emails originating within the territory of the United States (and saving them) was classified information and not subject to court review.

In the late 1980’s, through the end of the 1990’s, criminal defense lawyers took on clients who were prosecuted in U.S. Federal District Courts in New York and Florida for acts that are now prosecuted under the Patriots Act. Internationally anti-terrorist military actions by the U.S. government on foreign soil are undertaken.  

 During those years my office defended, in court, “terrorists” who acted to advance Palestinian partisans, the Irish Republican Army, and other outlier political movements.  I personally had Palestinian and Irish nationals who lived in South Florida and were charged under money laundering statutes for what they characterized as political acts.  They were dealt with by the U.S. Attorney; indicted under federal criminal statutes and prosecuted in the U.S. District Court in the Southern District of Florida.  All this was to change after the events of 911. We are now in a brave new world where criminal laws and procedures have been put aside. When the Bush administration responded to the terrorist acts, hijacking U.S. air carrier aircraft and flying them into the World Trade Center and other U.S. targets, the administration declared a state of war.  The Patriot Act was subsequently passed and declared non-domestic participants as combatants without portfolio: not soldiers, not military personnel, but a newly created legal status of terrorist.   Terrorists are pursued across international borders, U.S. agents kill “targets” within the borders of sovereign states that have not declared war or joined as allies by war treaties.   Without prosecutions, due process rights, combatants and terrorists are killed in civilian quarters and rural areas of aligned but non-combatant states.   Some of those “targets” are U.S. citizens who have enlisted as agents of foreign terrorists groups, identify with those terrorist organization and commit acts which under U.S. law expose them to prosecution as traitors.  But they are not pursued, arrested and extradited under U.S. laws. Now they are targeted for extrajudicial (no arrest, no trial, no courtroom proceedings) killing by U.S. military personnel, private contractors and the use of drones.  The legal consequences will be explored in this and future postings. First a backgrounder on why the U.S. is in war status, and is operating without a formal declaration of war. The government of the United States is NOT pursuing those who prey on U.S. citizens under existing domestic and international criminal laws and procedures. Understand: a person accused of a crime is treated differently than a combatant in a declared war. A “terrorist” is a combatant stripped of the status of combatants under all existing international law and treaties. It is all new, and without judicial review, except for the special courts which are behind closed doors and not subject to review, except by the Executive Branch. Consider it as extrjudicial killings (State sanctioned killings of persons without open courtroom proceedings and reviews).

Had the Bush administration legally designated those actors as criminals then the only recourse the U.S. government would have is legal extradition.  Had Bin Laden been a declared a criminal, he would have had to be first indicted and warrants would have been issued.  At that point, the only way to remove him from Pakistan (or wherever) was the machinery of international extradition compacts.  Not all nations are parties to the United Nations treaties or direct treaties on the extradition of those accused of crimes.  The machinery of extradition is cumbersome, slow and fraught with litigation, most of which had to begin in U.S. federal courts.  The office of the Attorney General was not equipped to scour the planet to find and then begin the process of extradition of those accused and/or suspected of criminal acts in the territorial boundaries of the United States.  Declaring a legal war allows the United States to declare participants a new species of actor; not criminals, not soldiers, not foreign nationals, but persons without the protection of the Geneva Convention or any existing legal definition.   The execution of these persons by use of United States armed forces, private contractors and the use of drones to kill has and will in the future open up the United States and its designees (contractors and military personnel used abroad) to an as yet undefined status.   When the United States government designated the military to convene tribunals for public relations purposes it creates an entire new world of legal issues which will be explored in future blog entries.