In State court, Florida Statutes § 921.186 allows the prosecutor to file a motion with the court seeking to reduce or suspend a sentence already imposed in a felony case based on the defendant’s cooperation with the state. That cooperation has to lead to the “identification, arrest, or conviction of any of the defendant’s accomplices, accessories, coconspirators, or principals, or of any other engaged in criminal activity that would constitute a felony. This gives defendants serving jail time two bites at the sentencing reduction apple. First, they can cooperate against anyone who was involved in the same criminal activity that resulted in their conviction and sentence. Second, they can provide information about different or new crimes. Section 921.186 is very similar to Federal Rule of Criminal Procedure 35.
Monday, August 24, 2015
GETTING A REDUCTION OF SENTENCE AFTER IMPOSITION OF SENTENCE BASED ON SUBSTANTIAL ASSISTANCE -State
In State court, Florida Statutes § 921.186 allows the prosecutor to file a motion with the court seeking to reduce or suspend a sentence already imposed in a felony case based on the defendant’s cooperation with the state. That cooperation has to lead to the “identification, arrest, or conviction of any of the defendant’s accomplices, accessories, coconspirators, or principals, or of any other engaged in criminal activity that would constitute a felony. This gives defendants serving jail time two bites at the sentencing reduction apple. First, they can cooperate against anyone who was involved in the same criminal activity that resulted in their conviction and sentence. Second, they can provide information about different or new crimes. Section 921.186 is very similar to Federal Rule of Criminal Procedure 35.
GETTING A REDUCTION OF SENTENCE AFTER IMPOSITION OF SENTENCE BASED ON SUBSTANTIAL ASSISTANCE
Many times clients and their families call our office seeking to get a sentence reduced after a sentence has already been imposed. In both federal and state court, it is very difficult to do unless the judge made a mistake in imposing the sentence, which is rare.
In federal court, a defendant may be able to get a sentence, that has already been imposed, reduced under Federal Rule of Criminal Procedure 35. Rule 35 allows for the correction of any error in the imposition of sentence within 14 days, and if the defendant cooperates with the prosecutors, and also allows the prosecutors to file a motion to reduce a sentence based on the defendant’s substantial assistance within 1 year, or under certain circumstances, more than 1 year.
In order to take advantage of either Federal Rule 35 or State Statute 921.186, a defendant seeking to reduce a sentence based on substantial assistance will have to work with the prosecutors, and should have experienced legal representation to make sure the sentence reduction is properly presented to the court and in fact given. Both the prosecutors and the court have broad discretion under these provisions to seek any reduction in the case of the prosecutors, or to grant a reduction in the case of the court, and a defendant may not get a second chance if the request is unsuccessful.
In federal court, a defendant may be able to get a sentence, that has already been imposed, reduced under Federal Rule of Criminal Procedure 35. Rule 35 allows for the correction of any error in the imposition of sentence within 14 days, and if the defendant cooperates with the prosecutors, and also allows the prosecutors to file a motion to reduce a sentence based on the defendant’s substantial assistance within 1 year, or under certain circumstances, more than 1 year.
In order to take advantage of either Federal Rule 35 or State Statute 921.186, a defendant seeking to reduce a sentence based on substantial assistance will have to work with the prosecutors, and should have experienced legal representation to make sure the sentence reduction is properly presented to the court and in fact given. Both the prosecutors and the court have broad discretion under these provisions to seek any reduction in the case of the prosecutors, or to grant a reduction in the case of the court, and a defendant may not get a second chance if the request is unsuccessful.
What is Pretrial Discovery
Pretrial discovery is what happens after the
charges are filed, and the parties exchange the evidence each side will use
such as the names and addresses of witnesses and copies of all written
statements, police reports, and copies, pictures, or descriptions of other
physical evidence such as firearms, weapons, drugs (in drug cases),videos, tape
recordings, etc. the prosecutor also has a duty to reveal any favorable
evidence that can be used to show that the defendant is not guilty.
Wednesday, August 12, 2015
Burden of Proof: Guilty or Not Guilty
Tuesday, February 25, 2014
Dismissing Federal Charges Based on the Statute of Limitations
There is a five year statute of limitations for most federal crimes. See, 18 U.S.C. § 3282. However, some federal crimes, like murder and other federal crimes punishable by death, 18 U.S.C. § 3286(b), and certain sex offenses, 18 U.S.C. § 3299, have no statute of limitations. Some federal crimes have there own longer statute of limitations. See e.g., 18 U.S.C. § 3294 (20 years -Theft of Art Work); § 3295(10 years - Arson); § 3293(10 years - Fraud Affecting Financial Institutions); §3286(a) (8 years - Terrorism Related Offenses Not Involving Violence); § 1031(6-years-Major Fraud Against United States); § 15 U.S.C. § 77x (6 years- Securities Fraud)26 U.S.C. § 6531 (6 years - Tax Crimes); 18 U.S.C. § 402 1 year-contempt of Court). This list is not exhaustive by any means, and is meant to be a sampling of the different types of statutes of limitations contained in the federal code.
However, the law applicable to the federal statutes of limitations and arguments seeking the dismissal of charges based on violations of the statute of limitations is straight forward and well settled.
The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.
Toussie v. United States, 397 U.S. 112, 114-15, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970).
When evaluating a motion to dismiss a criminal indictment based on the statute of limitations, the indictment is examined "solely on the basis of the allegations made on its face, and such allegations are to be taken as true." United States v. Reitmeyer, 356 F.3d 1313, 1316-17 (10th Cir. 2011). "[C]riminal statutes of limitations are to be liberally interpreted in favor of repose," and ought not be extended unnecessarily. United States v. Marion, 404 U.S. 307, 323 n. 14, 92 S.Ct. 455, 465 n.14, 30 L.Ed.2d 468 (1971).
A superseding indictment filed while the first indictment is still validly pending relates back to the original indictment and is not barred by the statute of limitations unless it broadens or substantially amends the charges in the first indictment. United States v. Davis, 953 F.2d 1482, 1491 (10th Cir.), cert. denied, 504 U.S. 945, 112 S.Ct. 2286, 119 L.Ed.2d 210 (1992). As such, the date of the original indictment tolls the limitations period as to alleged charge. Id.
As a general matter, the statutes of limitations clock begins to run when the crime is complete. Reitmeyer, 356 F.3d at 1316-17. A crime is complete as soon as every element necessary to commit the crime has occurred. Id. Once a criminal scheme is "executed," the crime is complete and has ended, and additional conduct in furtherance of the criminal scheme does not extend the statute of limitations for that particular "execution." Reitmeyer, supra at 1323 (Discussing application of statute of limitations to the Major Frauds Act, 18 U.S.C. § 1031, which provides fines and imprisonment for fraudsters perpetrating schemes to defraud the United States or engaged in other fraudulent schemes, and rejecting the government's arguments to extend the statute of limitations for major frauds prosecuted under the Act, affirming dismissal of charges as beyond the applicable statute of limitations).
In certain limited cases, Courts have recognized that certain crimes involve a "continuing offense" which may extend the statute of limitations, but only if the explicit language of the charged substantive criminal statute compels such a result, or if the nature of the crime is such that "Congress must assuredly have intended it to be treated as a continuing one." Toussie v. United States, 397 U.S. at 115, 90 S.Ct. at 860; accord, Reitmeyer, 356 F.3d at 1321-22. Such is not the case with § 1955. Iannelli, supra. In Toussie the Supreme Court again held that "criminal limitations statutes are to be liberally interpreted in favor of repose," and instructed that the doctrine of continuing offenses should be applied sparingly and in only limited circumstances noting that ". . . [t]he tension between the purpose of a statute of limitations and the continuing offense doctrine is apparent. Id. The former fixes a time limit by which the government must prosecute an individual following the occurrence of a criminal act, and "the latter, for all practical purposes, extends [this time limit] beyond [the statutory] term." Id.(quotation marks and citation omitted). As such, as a general matter, such the latter is to be eschewed.
H. Manuel Hernández has been an attorney for over 34 years. He was a federal prosecutor for ten years before opening his own practice 24 years ago.
Federal Grand Jury
The federal grand jury is a group of ordinary citizens who are summoned to serve on the grand jury, not unlike citizens are commonly summoned to serve on juries in criminal and civil cases. The grand jury is composed of not less than 16, but not more than 23 members. Fed. R. Crim. P. 6 (a)(1). The federal grand jury serves two main functions. First, it returns indictments against those person who have allegedly committed federal crimes. In this regard, the grand jury decides if there is probable cause to believe that a defendant committed a federal crime. Probable cause is one of the lowest standards of proof the law recognizes. Second, because federal grand juries have subpoena powers through the court, they are used as a tool by federal prosecutors to investigate alleged federal crimes. They can subpoena business records, bank records, witnesses to testify about facts, and the target of the investigation themselves to testify about what they did if they are foolish enough to do so. Although all proceedings before the grand jury, except deliberations and voting, are recorded, with limited exceptions, grand jury proceedings are generally secret and a court order is required to reveal proceedings before the grand jury. Fed. R. Crim. P. 6 (e)(1) through (3).
The grand jury is usually impaneled for 12 to 18 months, and may be extended for an additional 6 months if the court determines that an extension is necessary in the "public Interest. Fed. R. Crim. P. 6(g). Only the members of the grand jury, the court reporter, an interpreter, if needed, the prosecutors, and the witness being questioned may be present in the grand jury room while the grand jury is in session. Fed. R. Crim. P. 6(d)(1). No one but the members of the grand jury (or an interpreter needed to assist a hearing impaired grand juror) may be present when the grand jury is deliberating or voting. Fed. R. Crim. P. 6(d)(2).
There are generally two types of grand jury subpoenas, subpoenas to testify, and subpoenas duce tecum, which require the witness to produce documents or other items, and usually testify as well, at least about the documents and items being produced. When a person receives a grand jury subpoena, he or she must appear unless excused by the government’s prosecutor. A grand jury subpoena, like all subpoenas, are court orders, and if ignored, could subject the offender to possible prosecution for contempt and potential incarceration.
Many people subpoenaed to testify before a grand jury are merely witnesses. However, some people subpoenaed are "targets" or subjects" of the grand jury’s and the government’s investigation. These "targets" or "subjects" usually receive a "Target Letter" or "Subject Letter" informing them that they are targets or subjects, or put another way, the object, or one of the objects, of the grand jury’s and the government’s investigation. There is little difference between the term "target" and the term "subject" in the context of grand jury subpoenas. However, being identified as a "target" clearly means that the person is in the government’s cross-hairs.
The Fifth Amendment of the U.S. Constitution requires that anyone charged in federal court with "a capital. or otherwise infamous crime," which essentially means any felony providing for possible imprisonment of one year or more, must be charged by way of a grand jury indictment. An indictment is nothing more than a charging document which briefly states each alleged crime or crimes being charged separately. Each separate charge is referred to as a "Count" of the indictment. The indictment also cites to the federal statute or statutes the government is proceeding under at the end of each count. The indictment is presented to the members of the grand jury, who vote on it. There must be a "quorum" of at least 16 grand jury members present to consider any grand jury business, including the return of an indictment. . Fed. R. Crim. P. 6 (a)(1). If twelve or more grand jurors determine that there is probable cause to believe that the defendant or defendants listed in the indictment did commit the crime or crimes set out in the indictment, the grand jury returns a "True Bill," allowing the government to prosecute the defendant or defendants named in the indictment for the listed charges. Fed. Rule Crim. P. 6(f). The indictment is signed by the grand jury foreman, and at least one federal prosecutor. If 12 grand jurors cannot agree that there is probable cause to charge the target of the government’s investigation, a rare occurrence, to say the least, they return a "No True Bill." In contrast, Federal misdemeanors, crimes with possible sentences of less than one year, are charged by way of an information, which is essentially the same as an indictment, but is not presented to, or voted on, by a grand jury, and is not signed by the grand jury foreman. Instead, a federal prosecutor signs the information. The only way an information may be used in a case involving a felony is if the defendant waives his or her right to be charged by way of a grand jury indictment in open court and signs a written waiver. Fed. R. Crim. P. 7(b).
It is critically important that everyone receiving a grand jury subpoena consult with an experienced federal criminal defense attorney to discuss their situation and possible exposure to criminal charges. Even those who are not "targets" or "subjects" initially, can become so quite quickly. Often, this does not become clear until the person is sitting in the grand jury room testifying. Therefore, it is essential to consult with qualified legal counsel before responding to any grand jury subpoena. While the criminal defense lawyer cannot go into the grand jury room with the witness, the lawyer is allowed to remain immediately outside of the grand jury room. The witness may request to consult his or her attorney as often as needed while appearing before the grand jury, and must be excused and allowed a reasonable opportunity to consult with his or her lawyer while testifying before the grand jury. Very often, defense counsel can arrange to have the person receiving the grand jury subpoena meet with the government’s prosecutors and agents outside of the grand jury room for a oral proffer where defense counsel will be present to protect the witness and insure that the witness does not make things worse for themselves.
H. Manuel Hernández has been an attorney for over 34 years. He was a federal prosecutor for ten years before opening his own practice 24 years ago. Mr. Hernández has appeared before numerous federal grand juries around the country in countless cases as a federal prosecutor, and has represented both individuals and corporations who were subpoenaed by federal grand juries as a criminal defense counsel.
The grand jury is usually impaneled for 12 to 18 months, and may be extended for an additional 6 months if the court determines that an extension is necessary in the "public Interest. Fed. R. Crim. P. 6(g). Only the members of the grand jury, the court reporter, an interpreter, if needed, the prosecutors, and the witness being questioned may be present in the grand jury room while the grand jury is in session. Fed. R. Crim. P. 6(d)(1). No one but the members of the grand jury (or an interpreter needed to assist a hearing impaired grand juror) may be present when the grand jury is deliberating or voting. Fed. R. Crim. P. 6(d)(2).
There are generally two types of grand jury subpoenas, subpoenas to testify, and subpoenas duce tecum, which require the witness to produce documents or other items, and usually testify as well, at least about the documents and items being produced. When a person receives a grand jury subpoena, he or she must appear unless excused by the government’s prosecutor. A grand jury subpoena, like all subpoenas, are court orders, and if ignored, could subject the offender to possible prosecution for contempt and potential incarceration.
Many people subpoenaed to testify before a grand jury are merely witnesses. However, some people subpoenaed are "targets" or subjects" of the grand jury’s and the government’s investigation. These "targets" or "subjects" usually receive a "Target Letter" or "Subject Letter" informing them that they are targets or subjects, or put another way, the object, or one of the objects, of the grand jury’s and the government’s investigation. There is little difference between the term "target" and the term "subject" in the context of grand jury subpoenas. However, being identified as a "target" clearly means that the person is in the government’s cross-hairs.
The Fifth Amendment of the U.S. Constitution requires that anyone charged in federal court with "a capital. or otherwise infamous crime," which essentially means any felony providing for possible imprisonment of one year or more, must be charged by way of a grand jury indictment. An indictment is nothing more than a charging document which briefly states each alleged crime or crimes being charged separately. Each separate charge is referred to as a "Count" of the indictment. The indictment also cites to the federal statute or statutes the government is proceeding under at the end of each count. The indictment is presented to the members of the grand jury, who vote on it. There must be a "quorum" of at least 16 grand jury members present to consider any grand jury business, including the return of an indictment. . Fed. R. Crim. P. 6 (a)(1). If twelve or more grand jurors determine that there is probable cause to believe that the defendant or defendants listed in the indictment did commit the crime or crimes set out in the indictment, the grand jury returns a "True Bill," allowing the government to prosecute the defendant or defendants named in the indictment for the listed charges. Fed. Rule Crim. P. 6(f). The indictment is signed by the grand jury foreman, and at least one federal prosecutor. If 12 grand jurors cannot agree that there is probable cause to charge the target of the government’s investigation, a rare occurrence, to say the least, they return a "No True Bill." In contrast, Federal misdemeanors, crimes with possible sentences of less than one year, are charged by way of an information, which is essentially the same as an indictment, but is not presented to, or voted on, by a grand jury, and is not signed by the grand jury foreman. Instead, a federal prosecutor signs the information. The only way an information may be used in a case involving a felony is if the defendant waives his or her right to be charged by way of a grand jury indictment in open court and signs a written waiver. Fed. R. Crim. P. 7(b).
It is critically important that everyone receiving a grand jury subpoena consult with an experienced federal criminal defense attorney to discuss their situation and possible exposure to criminal charges. Even those who are not "targets" or "subjects" initially, can become so quite quickly. Often, this does not become clear until the person is sitting in the grand jury room testifying. Therefore, it is essential to consult with qualified legal counsel before responding to any grand jury subpoena. While the criminal defense lawyer cannot go into the grand jury room with the witness, the lawyer is allowed to remain immediately outside of the grand jury room. The witness may request to consult his or her attorney as often as needed while appearing before the grand jury, and must be excused and allowed a reasonable opportunity to consult with his or her lawyer while testifying before the grand jury. Very often, defense counsel can arrange to have the person receiving the grand jury subpoena meet with the government’s prosecutors and agents outside of the grand jury room for a oral proffer where defense counsel will be present to protect the witness and insure that the witness does not make things worse for themselves.
H. Manuel Hernández has been an attorney for over 34 years. He was a federal prosecutor for ten years before opening his own practice 24 years ago. Mr. Hernández has appeared before numerous federal grand juries around the country in countless cases as a federal prosecutor, and has represented both individuals and corporations who were subpoenaed by federal grand juries as a criminal defense counsel.
Monday, February 17, 2014
What Your Criminal Defense Lawyer Should Do to Represent You
By H. Manuel Hernandez hmanuelhernandezlaw.com
In previous posts I have discussed how to go about hiring a criminal defense lawyer, and things the client should do to assist the criminal defense lawyer in representing the client. Here, I will discuss what the criminal defense lawyer should be doing while representing someone under investigation or charged with a crime. Of course, each case is different. What a criminal defense lawyer should be doing varies greatly depending on the type of case, whether the case in in the investigatory (e.g., grand jury) stage, or charges have already been filed. Someone under investigation for, or charged with, a major securities or Medicare fraud matter or capital murder for example, will need far different representation than someone charged with driving under the influence of alcohol, trespassing, or shoplifting. However, whatever the charge is, the criminal defense lawyer must understand that it is the most important case in the world for the client, requiring all the attention necessary to insure the best result possible under the facts and the law. The focus of this post is not the details of the substantive work a criminal defense counsel should be doing in different types of case, but rather, a general overview of the what a criminal defense lawyer should be doing to let the client know what is happening with their case or investigation.
The criminal defense lawyer needs to maintain good communications with the client. This means the criminal defense lawyer should spend the time necessary to familiarize himself or herself with the client's case, the charges or potential charges if the client is still under investigation, the potential penalties if the client is convicted, and potential collateral consequences, such as, for example, the impact on a client's immigration status if the client is not a U.S. citizen, see, Padilla v. Kentucky, 559 U.S. , 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)(U.S. Supreme Court finding that it was ineffective assistance f counsel for a criminal defense lawyer not to advise a non-citizen client of the mandatory deportation consequence of pleading guilty), suspension of driver's license, registration as a sex offender in cases involving sex crimes and child pornography.
Also, according to recent decisions by the U. S. Supreme Court, it is now clear that the criminal defense lawyer must communicate all plea offers made by the prosecutor to the client, see Missouri v. Frye,___ U.S. ___, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012), and must provide competent advice to the client about whether to accept or reject the offer, see, Lafler v. Cooper, U.S., ___ U.S. ___, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012) and Padilla v. Kentucky, supra. Most competent criminal defense lawyers were doing this well before the Supreme Court said it is required. Criminal defense lawyers should also provide the client with copies of all pleadings, motions and court orders filed in the client's case, including pleadings and motions filed by the prosecutor. In sum, the criminal defense lawyer should keep the client aware of all important communications and events occurring in the client's case.
While the criminal defense lawyer should, and based on recent decision of the U.S. Supreme Court, has an ethical obligation to do these things, the client should remember that although their case is the most important case in the world to them, it is usually the only case the client has to deal with. Most criminal defense lawyers have many cases they are responsible for, and often, the criminal defense lawyer spends a great deal of his or her time addressing urgent matters in one case or another that need immediate attention. As such, the client should keep in regular touch with his or her criminal defense lawyer to insure that everything is getting done, and that the client is aware of everything happening in their case. Of course this does not mean that the client should be constantly calling his or her criminal defense lawyer, or make unreasonable demands. Most criminal defense lawyers should have no problem answering client's questions, and updating the client on what is going on with their case, and should welcome the client's input as the case proceeds.
H. Manuel Hernández has been practicing criminal law for over 30 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell® Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
While the criminal defense lawyer should, and based on recent decision of the U.S. Supreme Court, has an ethical obligation to do these things, the client should remember that although their case is the most important case in the world to them, it is usually the only case the client has to deal with. Most criminal defense lawyers have many cases they are responsible for, and often, the criminal defense lawyer spends a great deal of his or her time addressing urgent matters in one case or another that need immediate attention. As such, the client should keep in regular touch with his or her criminal defense lawyer to insure that everything is getting done, and that the client is aware of everything happening in their case. Of course this does not mean that the client should be constantly calling his or her criminal defense lawyer, or make unreasonable demands. Most criminal defense lawyers should have no problem answering client's questions, and updating the client on what is going on with their case, and should welcome the client's input as the case proceeds.
H. Manuel Hernández has been practicing criminal law for over 30 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell® Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
Friday, November 1, 2013
Obtaining Bond Pending Appeal
THE LAW REGARDING OBTAINING BOND PENDING A CRIMINAL APPEAL
Pursuant to the Federal bail statute, 18 U.S.C. § 3143(b)(1), a judicial officer shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless the judicial officer finds:
- A) by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any person or the community if released under section 3142(b) or (c) of this title; and
- B) that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal, an order for a new trial, a sentence that does not include a term of imprisonment, or a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.
Section 3143(b)(1). Thus, in order to be released on bond pending an appeal of a federal criminal conviction, the defendant-appellant must establish by clear and convincing evidence first, that he or she is not a flight risk or a danger to the community, second, that his or her appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in reversal or a new trial, or third, that a reduced sentence may result from the appeal that will be less than the time already served plus the expected duration of the appeal. 18 U.S.C. § 3143 (b)(1); United States v. Bayko, 774 F.2d 516 (1st Cir. 1985); United States v. Giancola, 754 F.2d 898, 901 (11th Cir. 1985), cert. denied, 479 U.S. 1018, 107 S.Ct. 669, 93 L.Ed.2d 721 (1986). A "substantial question" has been defined as one that is a close question or one that could very well be decided in favor of the defendant and that the claimed error is not frivolous. Bayko, 774 F.2d at 523; Giancola, 754 F.2d at 901. This “likely to result in a favorable result” standard does not require the District Court to conclude that it is likely to be reversed by the Court of Appeals. Bayko. Rather, the Court need only find that there is a close question that very well could be decided the other way and that the claimed error is not harmless. Id. Whether a question is substantial in this context must be determined on a case-by-case basis. Bayko, supra.
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
Friday, November 23, 2012
Immigration Consequences of plea if deportation is certain
Castano v. State, No. SC11-1571 -Florida Supreme Court reversed the 5th District Court of Appeals decision affirming the lower court’s denial of a petition to vacate based on defense counsel’s failure to properly advise the defendant of the certain immigration consequences of her plea. The Court held that United States Supreme Court’s decision in Padilla v. Kentucky applied to Florida Criminal Proceedings and that defense counsel must correctly advise non-citizen defendants of the immigration consequences of their plea if deportation is certain. The Florida Supreme Court held that in such cases Fla. R. Crim. P. 3.172(c)(8), which requires the court to advise a criminal defendant entering a plea of the possible immigration consequences would not save the plea under Padilla. Finally, the Court recognized a collateral proceeding’s "pipeline exception" allowing the courts to consider claims raised in collateral proceedings under Fla. R. Crim. P. 3.850 that are still pending when a new court decision is announced even though the new rule may not be otherwise applicable retroactively as the Court found with regards to the Padilla decision generally.
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
Thursday, September 27, 2012
How to Help your Criminal Defense Lawyer
How To Help Your Criminal Defense Lawyer Once You Have Hired One
by H. Manuel Hernandez hmanuelhernandezlaw.com
Once you have hired a criminal defense lawyer that you trust and feel comfortable with, you should provide him or her with copies of all documents related to your case, including the charging documents or any other documents you feel can assist the lawyer, and all other information that may assist in preparing the defense. This includes any documents you feel might hurt your defense. The attorney-client relationship is not a game of "hide-and seek," "20 questions," or "truth or dare." the client must be honest and forthcoming with their criminal defense lawyer. Put simply, you need to give your lawyer everything that might impact your case in any way, "the good, the bad, and the ugly." Many times a client will not know exactly what these documents and information are. So the client should error on the side of caution, and give everything to their lawyer and let the lawyer decide what will be helpful, and what will not.
One thing I ask every client to do is to prepare a short biography explaining who they are, where they grew up, where they went to school, how far in school did they get, their work history, and their family history. If there is significant health issues, the client should include them in this biography as well. I then ask my clients to provide me with a brief written synopsis of what happened in their case, from the beginning to the end. Even if the client has explained everything already during a face-to face meeting, I ask the client to sit down, take their time, look at their own calendars and other personal documents, consult with heir spouses and friends if they need to refresh their own memories, and provide me with their best recollection of what happened. Client always remember new things even after they leave their lawyer's office and have had time to think about their case when they are alone. Again, it is critical that the lawyer get as much information as possible from the person who should be his or her best source of information, the client.
In order to protect the attorney-client confidentiality privilege, the client should put the following advisement on the top of every page containing a communication to their attorney:
ATTORNEY-CLIENT PRIVILEGED COMMUNICATION AND/OR
PRIVILEGED ATTORNEY WORK PRODUCT
This will not guarantee that what the client writes may not wind up in the wrong hands and that it may be used for the wrong purposes. However, it gives the client's criminal defense lawyer a fighting chance to exclude anything contained in a document that was obviously meant to be a privileged attorney-client communication should the document wind up in the hands of law enforcement, for example if law enforcement finds it on the client during an arrest or search, or on the client's computer. So, this advisement should be at the top of everything the client writes to his or her lawyer. Everything!
The client should keep in regular contact with their lawyer, and update their lawyer if anything new should occur to them, or if any new information or documents should be discovered. Like all relationships, the attorney-client relationship will thrive best when there is good communications between the client and the lawyer.
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
Wednesday, September 26, 2012
Hiring a Criminal Defense Lawyer
HIRING A CRIMINAL DEFENSE LAWYER
By H. Manuel Hernández hmanuelhernandezlaw.com
The decision about which lawyer to hire is probably the most important decisions a person facing criminal charges has to make. An individual accused of any crime, but particularly a serious crime is going through one of the most difficult periods of their life; they are scared, angry, frustrated, and almost always confused about the criminal process, which can seem complicated and daunting. In many ways, criminal defense lawyers are like Oncologists in the medical profession. Nobody wants to find out they have Cancer and that they need to see an Oncologist, but if that day comes, you want to get the best one you can possibly find. The same is true about criminal defense lawyers.
A person who needs to hire a criminal defense lawyer should seek an experienced attorney with whom they are personally comfortable. They should not be afraid to speak to several lawyers before deciding which one to hire. The lawyer they hire should be clear about exactly what the legal fees (the money paid to the attorney for his or her services) are going to be, how the legal fees are to be paid, what the attorney will be doing in exchange for the legal fees, what type of expenses the client can anticipate (such as separate costs for private investigators, court reporter services, copying of documents, travel costs if applicable, etc). and any additional legal fees not be included in the initial retainer fee, such as a trial fee if the case is not resolved by dismissal or a guilty plea. The fee agreement should also be clear when the attorney's services are concluded. For example, in most criminal cases, an attorney hired to represent someone after they have been arrested and charged usually charge a fee to represent the person through the trial, and if necessary, through the sentencing. However, there may be an additional fee if the case is not resolved before trial and the attorney must take the case to trial. There is almost always an additional fees for any appeal that may become necessary.
The client should insist that there be a written fee agreement setting out exactly what the client is to pay and when the payments are to be made. Most attorneys will work with a client regarding the payments, but each attorney is different. Some take payment plans, and some do not. Some insist on payment in full at the signing of the fee agreement, others will work with a client if they cannot pay the entire fee immediately. The client needs to know what he or she is agreeing to when they hire an attorney to avoid issues in the future. The last thing anyone facing criminal charges wants is to have is a dispute with their criminal defense lawyer about money. The lawyer should be focused 100% on what is best for the client and on resolving their criminal case, and not be distracted trying to collect their fees and getting enough expense money to properly defend the client.
In a serious criminal case the client's reputation, livelihood, and in some cases, their very lives are at stake. The decision about which criminal defense lawyer to hire to represent them is very often one of the most important decision the client will ever have to make. The decision should be made with great care.
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor a, and the last 22 years as a criminal defense attorney. He is duel Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernandez has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
Tuesday, September 25, 2012
Health Care Fraud
To support a conviction for health care fraud under 18 U.S.C. § 1347, the government must prove that the defendant: (1) knowingly and willfully executed, or attempted to execute, a scheme to (2) defraud a health care program, here, as set out in the superseding indictment, the Medicare program, or to obtain by false or fraudulent pretenses money or property under the custody or control of a health care program, (3) "in connection with the delivery of or payment for health care benefits, items, or services." 18 U.S.C. § 1347. Also, the government must show that the defendant’s scheme to defraud affected interstate commerce
Health Care Fraud
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
Health Care Fraud
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
Aggravated Identity Theft
Under 18 U.S.C. § 1028A(a)(1), a person is guilty of aggravated identity theft if, in relation to any felony listed in § 1028A(c), he or she "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person." www.hmanuelhernandezlaw.com
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
Thursday, December 16, 2010
Post-Verdict Rule 29 Motions and Rule 33 Motions
In a post-verdict motion for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29(c), the Court, in assessing the sufficiency of the evidence, must review the evidence considered as a whole, including all inferences that may be reasonably drawn from it, in the light most favorable to the jury’s verdict, and decide whether a rational trier of fact could find guilt beyond a reasonable doubt. The motion must be filed within 7 days after the jury returns its verdict, or any additional time period allowed by the Court within the 7 days provided by the rule.
The verdict of a jury must be sustained if there was substantial evidence to support it. Thus, a criminal defendant has a "heavy burden" in requesting that his jury conviction be overturned based on insufficient evidence. However, although the standard of review for claims of insufficient evidence is stringent and a difficult one to meet, this does not mean that the reviewing court’s role is one of a perfunctory rubber stamp. Rather, the court's responsibility is to ensure that the government has shouldered its burden and adequately proved its case. In this regard, the government must do more than prove that the defendant's participation in the crime charged is possible or even plausible. It must prove the defendant's guilt beyond a reasonable doubt. For example, a criminal conviction based upon piling inference upon inference cannot stand. And while the evidence need not exclude every reasonable hypothesis of innocence in order to sustain a guilty verdict, a conviction predicated on conjecture cannot be sanctioned by the court. Thus, in spite of the stringent standard of review, if the government fails to meet its heavy burden of proof, the reviewing court must set aside the verdict.
The verdict of a jury must be sustained if there was substantial evidence to support it. Thus, a criminal defendant has a "heavy burden" in requesting that his jury conviction be overturned based on insufficient evidence. However, although the standard of review for claims of insufficient evidence is stringent and a difficult one to meet, this does not mean that the reviewing court’s role is one of a perfunctory rubber stamp. Rather, the court's responsibility is to ensure that the government has shouldered its burden and adequately proved its case. In this regard, the government must do more than prove that the defendant's participation in the crime charged is possible or even plausible. It must prove the defendant's guilt beyond a reasonable doubt. For example, a criminal conviction based upon piling inference upon inference cannot stand. And while the evidence need not exclude every reasonable hypothesis of innocence in order to sustain a guilty verdict, a conviction predicated on conjecture cannot be sanctioned by the court. Thus, in spite of the stringent standard of review, if the government fails to meet its heavy burden of proof, the reviewing court must set aside the verdict.
Rule 33 Motions
A motion for a new trial pursuant to Federal Rule of Criminal Procedure 33 is addressed to the sound discretion of the district court and is reviewed on appeal under the abuse of discretion standard. The motion must be filed within 7 days after the jury returns its verdict, or any additional time period allowed by the Court within the 7 days provided by the rule. On a motion for a new trial based on the weight of the evidence, the court need not view the evidence in the light most favorable to the verdict. Unlike a motion for a judgment of acquittal made pursuant to Rule 29, the district court may weigh the evidence and consider the credibility of the witnesses. If the court concludes that, despite the abstract sufficiency of the evidence to sustain the verdict, the evidence preponderates sufficiently heavily against the verdict that a serious miscarriage of justice may have occurred, it may set aside the verdict, grant a new trial, and submit the issues for determination by another jury. However, motions for new trials based on the weight of the evidence are not favored, and courts are to grant them sparingly and with caution.
For more information visit H. Manuel Hernandez, P.A.
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
Aiding and Abetting - 18 U.S.C. § 2
The government can also convict a defendant for a substantive offense under the aiding and abetting statute -18 U.S.C. § 2. There is no separate penalty for § 2. To prove a substantive charge under a theory of aiding and abetting, the government has to prove that the defendant knowingly associated himself with the criminal venture and sought to make the venture a success. Judge Learned Hand set out the classic definition of aiding and abetting more than half a century ago when he explained that in order for a defendant to be liable as an aider and abettor, he must "in some sort associate himself with the venture, that he participate in it as something that he wishes to bring about, [and] that he seek by his action to make it succeed." As such, the crime of aiding and abetting does not require proof of an agreement to break the law like a conspiracy charge does. However, it does require knowledge of the crime being aided and abetted. The legal axiom "Actus non facit reum, nisi mens sit rea, "the act alone does not amount to guilt; it must be accompanied by a guilty mind" applies to this analysis
For more information visit H. Manuel Hernandez, P.A.
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
A Short Summary of the History of Federal Sentencing Laws
Federal sentencing law has experienced many changes during the last quarter century, and an often unsettling evolution during the past decade. This was not always the case. For the better part of the twentieth century, punishment in federal criminal cases was imposed under an indeterminate sentencing scheme. Statutes specified the penalties for crimes, but the sentencing judge had broad discretion to incarcerate a defendant and determine the length of the term of imprisonment, or impose probation or some other form of lesser restraint, and decide whether a fine should be imposed and how much. See, Mistretta v. United States, 488 U.S. 361, 363, 109 S.Ct. 647, 650, 102 L.Ed.2d 714 (1989). Federal sentencing was designed then on the premise that defendants convicted for criminal conduct could be rehabilitated and then returned to society with a minimal risk of recidivism. Id.
Eventually, "[r]ehabilitation as a sound penological theory came to be questioned and, in any event, was regarded by some as an unattainable goal for most cases." Mistretta, 488 U.S. at 365, 109 S.Ct, at 651. See, Senate Report on Sentencing Reform Act of 1984, S.Rep. No. 98-225 (1983), U.S. Code Cong. & Admin. News 1984 at p. 3182 (Referring to the "outmoded rehabilitation model" for federal criminal sentencing, and recognizing that the efforts of the criminal justice system to achieve rehabilitation of offenders had failed). Also, the broad discretion given sentencing judges under this system led to perceptions that "federal judges mete out an unjustifiably wide range of sentences to offenders with similar histories, convicted of similar crimes, committed under similar circumstances." Koon v. United States, 518 U.S. 81, 92, 116 S.Ct. 2035, 2043-44, 135 L.Ed.2d 392 (1996).
To be continued
For more information visit H. Manuel Hernandez, P.A.
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
Criminal Appeal Time Limitations
Florida Appeals in Florida State Cases1(A judgment and sentence "become final" within meaning of rule that requires motions to be filed within two years after judgment and sentence become final, when direct review proceedings are concluded, and jurisdiction to entertain motions for post conviction relief returns to the trial court). A defendant may, however, attack his or her conviction and sentence at any time if the defendant alleges and can establish 1- newly discovered evidence that was not known to the defendant or the defendant’s attorney previously and could not be ascertained by the exercise of due diligence; 2- a fundamental constitutional right asserted was not established during the 2-year time limitation and has been found to apply retroactively; and 3- that the defendant retained an attorney to timely initiate the collateral proceeding attacking the conviction and sentence and the attorney, through neglect, failed to act. Fla. R. Crim. P. 3.850(b)(1)-(3).Generally speaking, under Florida law a defendant has 30-days to file a direct appeal of his or her criminal conviction and sentence. Fla. R. App. P. 9.140(b)(3). A defendant may also file a collateral proceeding trying to set aside his or her conviction based on, among other things, ineffective assistance of counsel, within 2-years of the conclusion of any direct appeal in a non-capital case, and 1-year in a capital case. Fla. R. Crim. P. 3.850(b). The time period begins to run after the Florida Supreme Court has either ruled on any appeal, or in non-capital cases, has refused to consider an appeal, or after the 30-day time period has expired to appeal to the Florida Supreme Court from any adverse decision of the District Court of Appeals that considered the direct appeal, including any motions for rehearing.
For more information visit H. Manuel Hernandez, P.A.
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
For more information visit H. Manuel Hernandez, P.A.
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
Drug Offenses - Conspiracies
To prove the existence of a drug conspiracy under 18.U.S.C.§ 846, the government must prove beyond a reasonable doubt that there was an agreement between the accused and at least one of the other alleged conspirators to violate the narcotic’s laws as set out in the indictment. The existence of a conspiracy can be established by either direct evidence or circumstantial evidence, such as inferences drawn from the conduct of the defendants. Id. Unlike the general federal conspiracy statute, 18 U.S.C.§ 371, the government is not required to prove the commission of an overt act.
However, as in the case with non-drug conspiracies, showing that a defendant has a general knowledge about drug activity does not prove that he or she agreed to become part of the conspiracy. The law is clear that mere presence at the scene of a crime or conspiratorial activity, or mere association with a co-conspirator, is not enough to establish a defendant's knowing and intentional participation in criminal activity, even if the defendant is aware of the criminal activity.
To establish a violation of 21 U.S.C. § 841, the government must prove that defendant: (1) possessed or distributed the controlled substance charged in the indictment either actually or constructively, (2) did so with a specific intent to distribute the controlled substance and (3) did so knowingly and intentionally.
However, as in the case with non-drug conspiracies, showing that a defendant has a general knowledge about drug activity does not prove that he or she agreed to become part of the conspiracy. The law is clear that mere presence at the scene of a crime or conspiratorial activity, or mere association with a co-conspirator, is not enough to establish a defendant's knowing and intentional participation in criminal activity, even if the defendant is aware of the criminal activity.
To establish a violation of 21 U.S.C. § 841, the government must prove that defendant: (1) possessed or distributed the controlled substance charged in the indictment either actually or constructively, (2) did so with a specific intent to distribute the controlled substance and (3) did so knowingly and intentionally.
For more information visit H. Manuel Hernandez, P.A.
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
Federal Child Pornography Statutes and Prosecutions
The elements of proof for most of the federal child pornography statutes are very similar, and with regards to the mens rea showing required regarding knowledge about whether what is being received, possessed or distributed is child pornography, the statutes are essentially identical. For example to prove a violation of § 2252A(5)(B), the basic violation providing the lowest sentencing exposure for mere receipt or possession of child pornography, the government must prove all of the following essential elements beyond a reasonable doubt:
First: That the Defendant knowingly received or possessed an item or items of child pornography, as charged;
Second: That such items of child pornography had been transported, shipped or mailed in interstate or foreign commerce, including by computer, as charged; and
Third: That at the time of such reception or possession the Defendant believed that such items constituted or contained child pornography . . .
First: That the Defendant knowingly received or possessed an item or items of child pornography, as charged;
Second: That such items of child pornography had been transported, shipped or mailed in interstate or foreign commerce, including by computer, as charged; and
Third: That at the time of such reception or possession the Defendant believed that such items constituted or contained child pornography . . .
For more information visit H. Manuel Hernandez, P.A.
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
General Conspiracy - 18 U.S.C. § 371
A conspiracy is considered a separate and distinct offense from the underlying substantive offense contemplated by the conspiracy. To prove a conspiracy under 18 U.S.C. § 371, the government must prove beyond a reasonable doubt (1) an agreement among two or more persons to achieve an unlawful objective; (2) knowing and voluntary participation in the agreement; and (3) an overt act by a conspirator in furtherance of the agreement. . A violation of § 371 is punishable by a fine and imprisonment of up to five years, or both.
Since the offense of conspiracy is a specific intent crime, “[t]he government must . . . prove beyond a reasonable doubt that each defendant had a ‘deliberate, knowing, specific intent to join the conspiracy.’” To establish this requisite intent, the evidence of knowledge must be substantial, clear and unequivocal, not slight. In other words, the government must prove that a defendant knowingly and intentionally joined the charged conspiracy, knowing the conspiracy’s aims and intending to achieve them. Id.
However, showing that a defendant has a general knowledge about criminal activity does not prove that he or she agreed to become part of the conspiracy. The law is clear that mere presence at the scene of a crime or conspiratorial activity, or mere association with a co-conspirator, is not enough to establish a defendant's knowing and intentional participation in criminal activity, even if the defendant is aware of the criminal activity.
For more information visit H. Manuel Hernandez, Attorney at Law
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
H. Manuel Hernandez has been practicing criminal law for 32 years, the first 10 years as a federal prosecutor, and the last 22 years as a criminal defense attorney. He is dual Board Certified by the Florida Bar as a Criminal Trial Specialist and a Criminal Appellate Specialist by the Florida Bar. He is also Certified by the National Board of Trial Advocacy as a Criminal Trial Advocate. Mr. Hernández has been rated "AV" in the distinguished Martindale-Hubbell Law Directory, the highest rating available in this highly respected legal directory relied on by attorneys when looking for other attorneys to refer cases to or to work with in different areas of the law.
For more information please call the office of attorney H. Manuel Hernández, P.A. 407-682-5553
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