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Articles Posted in Trafficking

IMG_0179-e1519940395141-300x142It’s pretty rare that you get a chance to meet your heroes.  I haven’t.  But years ago, when I was playing in bands, our band manager Sarah met the lead singer of our favorite band.

I couldn’t wait to hear from Sarah about her encounter, she actually interviewed him.

Needless to say, even though his music was brilliant–the man himself was severely lacking.  Sarah was deflated and she learned the hard way the old cliche ‘never meet your heroes’.  Part of this cliche is rooted in the fact that a person’s genius in one area of life doesn’t mean that the person is great in all areas of their life.  We all know that a great actor rarely has any sort of superior wisdom over the bum on the street.  As Pat Sajak noted, “Trust me, one’s view of the world isn’t any clearer from the back seat of a limo.”

Now, let’s get to some legal stuff.  My apologies for the rough segue.

If you’re accused of possession of a controlled substance, there are only two ways that you can be convicted of this crime: First, the state may prove that you “actually” possessed the drug.

Meaning, the drugs were in your hand.  Or, the drugs were in your pocket, sock, bra, anywhere on your person. Continue Reading

cocaine-300x225Remember that episode of Seinfeld where Elaine dates a gynecologist and she complains of his “lack of interest” in her, and the running joke was that her doctor friend had seen plenty of women at work all day, so Elaine couldn’t do much to peak his interest after work.  I get that.

And, I feel the same way about crime TV shows.  I get this stuff all day, so I don’t need to go home and watch more of it.  In real life, the nuts & bolts of a criminal case are far less dramatic and often–very important aspects of the case get ignored on-screen.

For example, one of the most important documents in a criminal case is The Information.  It’s the document that formally charges a citizen with a crime.  Other states call this an “indictment,” but in Florida, we call it an information.

Our real-life case for today involves a citizen convicted of drug trafficking, and his conviction required him to serve a minimum mandatory prison sentence of 15 years in the Department of Corrections.  All trafficking cases carry a minimum mandatory prison sentence, but all the drama, in this case, came from the Information.  Continue Reading

baggies-cu-e1563998786979-225x300I get it.  People do things they shouldn’t do.  But, taking a picture or video while doing it seems like you’re pushing your luck.  Again, I get it.    Today’s real-life case should serve as a gentle reminder that even borderline shady photography may cause trouble, so, I recommend you not document shenanigans with your iPhone.  Just saying.

Todays’s case is Dion Johnson v. State of Florida, 2019 Fla.App.Lexis 18806 (Fla 1st DCA 2019).  Johnson was sent to prison for 15 years for drug trafficking.  A picture on his phone sealed his fate.  Here’s what happened:

The SWAT team executes a search warrant of a house.  Several people in the house during the search.  One of these folks was Dion Johnson.  We know that Johnson did not own or rent the home,  he was just visiting.

At trial, the prosecutor called a witness who testified that drugs were sold from this house, and they testified that even Johnson was selling drugs from this home, but the witness couldn’t say what kind of drugs Johnson was selling (I cannot believe this evidence made it to trial, but that’s a topic for another day, in general, see Austin v. State, 44 So.3d 1260 (Fla. 1st DCA 2010)).  Continue Reading

Science can explain everything.cropped-message-300x188

As I sit here typing, neurologists can explain how the light from the screen is processed by my retina, which is directly connected to my brain.  Some scanner out there (fMRI?) could probably map out my visual cortex as I’m looking at this screen.    Another branch of science could probably explain how my brain is sending signals to my fingers so that I can hunt & peck this article.  Scientists have no problem mapping out the function of things and figuring out their structure.  Easy stuff.

The tough question is, why should these structures give rise to any sort of feelings?  Sure, science can explain everything–except how I feel.   I’m sure some coffee scientist out there can drill down into how the delicious smell of coffee first hits my nose, which then sends a signal to my brain, which then causes me to rush to the Keurig machine and retrieve that precious liquid that gets me through the rest of day.  But, no scientist can tell me how that coffee is going to taste.

No, we’re not going to dive into “the hard problem of consciousness” today (or ever?), as I’m running out of words (web promoter people tell me to keep it under 1,000 words.  Sorry), and you’re running out of interest.  Suffice to say that, even though there are plenty of limitations on science, certain criminal cases are begging for a bit of attention from the white coats.  You need science to prove certain allegations.  You need science to defend certain allegations.  We’re going to talk about just such a case today.

Demetrius Nugent was convicted of trafficking in oxycodone based upon lots of pills found in a car he was driving.  Nugent v. State2019 Fla. App. LEXIS 89333 (Fla. 2d DCA 2019).

Here’s what happened: the Lee County Sheriff’s office was conducting a drug investigation, and they had their eye on a red Mustang that kept making odd trips in and out of a neighborhood.  They followed the Mustang to a convenience store, where they then observed a Nissan pull up next to it.  Then, someone hopped out of the Nissan and into the Mustang.  The Nissan person exited the Mustang with something in his hand, but the cops didn’t know what it was.  The Nissan leaves the convenience store and naturally, the police follow.

Now, remember what I said upfront: the police are conducting a drug investigation.

And, how do you find drugs?

Well, you’ve got to come up with a reason to stop that Nissan. Continue Reading

cardboard_box_love-300x224Do you know how many people died last year in car accidents?  Worldwide, 1.3 million people.

How safe are airplanes, compared to cars?  For the same time period, 324 people died in plane crashes.  Again, 1,300,000 people died in cars (these are 2016 stats, and yes, I know its 2018).

Now, airplanes are interesting because some planes are designed to shoot down other planes and you would think this would drive up the airplane death stats significantly.  This is what makes being a fighter pilot such a tough business.  We all know the stress involved because, after all, who can forget Tom Cruise losing his best friend “Goose” in Top Gun?  That was based on a true story, wasn’t it?   If not, at least Fargo was a true story, I believe.

There are lots of theories on how to win a fighter jet confrontation like those found in Top Gun.  The most famous book on the subject, Aerial Attack Study, was written by the guru John Boyd.   Boyd’s book said lots of things the military didn’t want to hear: the best pilot doesn’t win the fight.  The best fighter jet doesn’t win the fight.  Contrary to popular military opinion, “perfection” in a dog fight is not the goal.

When Boyd wrote Aerial Attack Study, there were only two fighter jets worth a damn: the Russian Mig and the American F-16.  Have you ever checked the stats of, say, a Porsche 911 versus a Dodge Dart?  The Porsche has more horsepower.  It has a higher top speed.  It is faster 0-60 mph.  Same deal with the Russian Mig fighters: the Mig won in every category.  It had a higher top speed.  It had more firepower.  Better range.

So, why is it that our F-16’s have won every fight with a Mig, ever?

Because our F-16’s change direction faster than a Mig.  That’s all.  Just that one thing.  Agility.  Sure, the Mig was a more “perfect” plane statistically–stronger, faster, blah blah blah.   But, the ability of an F-16 to change direction faster than a Mig made it so that our pilots could outmaneuver the Mig every time.  And that was the crux of Boyd’s advice–build a plane with more agility, and you win.

The lesson here?   You don’t have to be perfect.  But you must be agile.  If you’re not moving in the right direction at first, change directions before your opponent knows what hit them.

Agility wins in business too.  Was YouTube a perfect company when it started in 2005?  Hardly.  YouTube started as a dating site, with the slogan “Tune In, Hook Up.”   And, you know the rest of that story.  Continue Reading

perscription pill bottleI have a few statistical facts for you, and I’m using the term “statistical” and “facts” rather loosely.

Four out of every five citizens who are arrested for drug trafficking are victims of entrapment.  Technically, five out of every five citizens arrested for drug trafficking believe they are victims of entrapment, but we’re not concerned with beliefs here, only the facts.  Entrapment can be difficult to prove, because most judges and prosecutors won’t admit their beloved agents could ever permit an informant to manufacture a crime, rather than detect a crime.  Well, I hate to break it to you, but it happens all the time.   To understand why entrapment is prevalent in Florida, it’s important to understand how the game is played.  Most entrapment cases involve confidential informants attempting to wiggle their way out of a serious charge, so that’s our focus.

The game begins when someone is arrested  on a trafficking charge involving mandatory prison time (often a mandatory minimum of 25 years in prison—about 12 years more than the average child rapist receives).   The defendant who decides to become a snitch is usually a first offender, desperate not to spend the best years of his life behind bars.  Let’s face it, this kind of time hanging over your head would cause most folks to do things they would otherwise be incapable of doing.  So, with no law enforcement training, only a desire to “do anything to avoid going to prison”, law enforcement unleashes their untrained informants into Florida’s streets.   These defendants/informants are now charged with a task that is typically reserved for “highly” trained undercover officers—set up drug deals.  Not just any drug deal.  Big drug deals.  Yes, “big” can mean “dangerous”, a story for another day.  The technical term for this untrained undercover work is “substantial assistance”.

An entire book could be written about substantial assistance deals, but who has the time for that?  Here’s the three sentence version.  A substantial assistance deal is a plea agreement with extra clauses providing the defendant with guaranteed “credit” against his minimum mandatory sentence for every arrest he manufactures.  For example, if a defendant is facing a 25 year minimum mandatory for trafficking in oxycodone, the defendant may receive 5 years off of that sentence for every 25 year minimum mandatory arrest he manufactures.  If the set up isn’t a big enough deal, the credit may only be for 3 years off, or 2 years off, and so forth, and so on.  Yes, there are problems determining how much credit is due.  For example, if a defendant’s efforts lead to the arrest of eight people—shouldn’t the defendant be given credit for all eight arrests?   Continue Reading

old scale.jpg[Whenever I can’t come up with a catchy title for a topic I’ve already covered a thousand times, I simply add the word “again”, or “part 2” or “revisited”. I first wrote about this topic in July of 2012, in “How to Weigh Drugs in a Trafficking Case“.]

We need experts to tell us how to do anything more complicated than finger counting. Some of this expert testimony is simple, and necessary if we want to keep our government in check (police work is only easy in a police state, right?). One of the more common cast of characters to appear on behalf of the State in drug cases are FDLE’s lab chemists. The good news is, most of these folks are fully capable of putting drugs into a machine, and reading the results to a jury–much in the way a Wal-Mart cashier scans your products and tells you how much they cost. Unfortunately, not all of these folks truly understand how their machines regurgitate test results; and when you ask them to explain the science, they give a look reminiscent of a dumbfounded Ben Stiller in Zoolander. A classic comedy, for sure, but not something that should be remotely similar to expert scientific testimony. Anyway, some lab analysts simply do not follow the most basic of scientific tasks. Today’s simple scientific task involves testing a controlled substance before weighing it. Weight is important. The weight of a substance can mean the difference between a lengthy prison sentence, and a probation sentence.

So, again, it is with great joy that I bring you a case in which our government cannot handle the most basic scientific procedure.
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pills in bottle.jpgminimum mandatory sentences are simply heavy handed and arbitrary…we should not have laws that ruin the lives of our young men and women who have committed no violence.” United States Senator Rand Paul (R-Ky)

Finally, a much needed modification to Florida’s drug trafficking laws for the painkillers hydrocodone and oxycodone (found in Florida Statute 893.135). For many years, your taxpayer dollars have been going to warehouse people in prison–not for being hardened criminals, but for having a pain pill addiction. And, it really doesn’t take much to end up in prison for painkillers. Under current drug trafficking laws, a mere 7 pills can trigger a minimum mandatory 3-year prison sentence (and, a mandatory $50,000 fine. Yes, only $120 in pills gets you a $50,000 fine):

HYDROCODONE – current law (based upon an average pill weight of 0.65 grams):

7 pills = 3-year mandatory prison term (4 grams)
22 pills = 15-year mandatory prison term (14 grams)

HYDROCODONE – new law, taking effect July 1st, 2014
7 pills = NO MANDATORY, NO TRAFFICKING, just a possession of hydrocodone charge 22 pills = 3-year mandatory prison term (14 grams)

And, the trafficking laws changed for oxycodone as well.

OXYCODONE, current law (based on average pill weight of 0.13 grams):

31 pills = 3-year mandatory prison term (4 grams)
108 pills = 15-year mandatory prison term (14 grams)

The new law governing OXYCODONE, taking effect July 1st, 2014, is as follows:

31 pills = NO MANDATORY, NO TRAFFICKING, just a possession of oxycodone charge 53 pills = 3-year mandatory prison term (7 grams)
108 pills = 7-year mandatory prison term (14 grams)

So, what is considered a trafficking offense today will no longer be a trafficking offense next week. A first degree felony trafficking will be reduced to a third degree felony possession of a controlled substance, as listed above. That’s a step in the right direction.
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grow house.jpgAs you know, I’ve been practicing criminal defense here in Orlando for twenty years. The time has flown by, doesn’t even seem possible. And, I’ve never ever been a prosecutor–only defense, all these years. Basically, I’ve heard a lot of stories. Some true, some not-so-true. I hate to say it, but we defense attorneys get a good laugh at the stories that folks think will pass as a “defense”. This next case review qualifies as just such a story.

In Balsuto-Rodriguez v. State, the defendant was found guilty of trafficking in cannabis–because, he was present at a grow house. 95 So.3d 403 (Fla.App. 3rd DCA 2012). Now, what’s funny is the defendant’s claim that he had nothing to do with the hydroponic grow house operation, he was simply burglarizing the home when the cops showed up! Yea. So the defendant admitted to a burglary of a dwelling, but denied a trafficking in cannabis. This one, I haven’t heard before. Here’s how it went down.

This story began like any other grow house search warrant case. The police received a tip. The police then conducted surveillance, and once they gathered enough suspicious facts, they obtained a warrant and forced their way into the home for a search. Inside, the cops discovered at least 250 marijuana plants, all growing in plain view, hydroponically. Usually, drug unit will arrest everyone found on site for at least three charges: cultivation of cannabis, possession of cannabis with intent to sell or distribute, and trafficking in cannabis charge. This last charge, trafficking, depends upon the number of plants found, or the weight of the plants. A minimum of 300 plants or 25 pounds must be proven to get a trafficking in cannabis conviction.
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oktoberfest.jpgConspiracy theories are everywhere, especially here in Orlando. If you can dream up a conspiracy, someone out there has already written a book on the subject. And here’s the funny thing–it’s not just the general public that subscribes to these theories, law enforcement officers are just as bad, probably worse. It is not a crime to hang out with a drug dealer. It is not a crime to have friends that commit crimes (if that were the case, all of Wall Street would have gone down with Bernie Madoff). Even though none of us want our kids hanging out with the wrong crowd, law enforcement takes it to a whole new level.

The case is Betsy Dieujuste v. State. 86 So.3d 1209 (Fla. 4th DCA 2012). Betsy was convicted of conspiracy to traffic in oxycodone. It all started with an undercover operation by the Delray Beach Police Department, and an undercover deal they arranged to purchase 50 oxycodone pills. The deal was not set up with Betsy, and there was no evidence that she planned the transaction. The incriminating circumstances involved the fact that she was sitting in the rear of a vehicle involved in the drug deal. Later, Betsy moved to the front seat, drove off in the drug dealing car, and moments later she was confronted by the police. Ms. Dieujuste gave her purse to the police, and they found $400 cash in it, all of which were marked bills from the drug transaction moments before. Betsy told the police that was her rent money. Also, the purse contained a valid prescription bottle containing 46 oxycodone pills—the same type of pills in the drug deal (but no scientific evidence was presented that these pills matched previous transactions).
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