Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Tag: Miami Dade

United States Supreme Court Affirms Removal of Asian Husband and Wife, Lawful Permanent Residents Since 1984, After They Are Convicted of Filing False Tax Returns: Kawashima v. Holder, No. 10-577

Now that the Mardi Gras season is over, the federal criminal defense and immigration defense lawyers in Palm Beach, Broward, and Miami Dade county may want to take a few moments moment to read a newly issued opinion from the United States Supreme Court: Kawashima v. Holder, No. 10-577.  On February 21, 2012, the Court affirmed the deportation and removal of Akio and Fusako Kawashima, natives and citizens of Japan who were lawful permanent residents of the United States since June 21, 1984.  According to the opinion, in 1997, Mr. Kawashima pleaded guilty to one count of willfully making and subscribing a false tax return in violation of 26 U.S.C. § 7206(1), and Mrs. Kawashima pleaded guilty to one count of aiding and assisting in the preparation of a false tax return in violation of 26 U.S.C. § 7206(2).  After  framing the issue as “whether aliens who commit certain federal tax crimes are subject to deportation as aliens who have been convicted of an aggravated felony,” the Court held that “violations of 26 U. S. C. §§ 7206(1) and (2) are crimes ‘involv[ing] fraud or deceit’ under 8 U.S.C. § 1101(a)(43)(M)(i) and are therefore aggravated felonies as that term is defined in the Immigration and Nationality Act, 8 U. S. C. § 1101 et seq., when the loss to the Government exceeds $10,000.”

Justice Thomas delivered the majority opinion of the Court, and was joined by the other conservative members of the Court, Chief Justice Roberts, and Justices Scalia, Kennedy, Alito, and Sotomayor.  Although the majority opinion is a rather short 11 pages, be warned: the writing is a dry, statutory construction discussion of several  tax and immigration sections, including 26 U.S.C. §§ 7206(1), (2), and 8 U.S.C. §§ 1101(a)(43)(M)(i) and 1227(a)(2)(A)(iii) of the Immigration and Nationality Act.

As with most Supreme Court opinions, the dissenting opinion is once again the most interesting part to read.  While Justices Ginsburg, Breyer, and Kagan also undertake a statutory-construction discussion, the critical tone in which the dissenters point out the flaws of the majority opinion cannot be mistaken.  Ordinarily, I would summarize the points in the dissenting opinion for you, but in this case, Justice Ginsburg’s writing is so persuasive, that I think that you really should take a few moments and read it for yourself.

On a side note, I am interested to see how much media attention, if any, the Kawashima opinion will receive.  Immigration is always a hot-button issue in American politics, but I suspect that this case will attract little, if any attention.   After all, it’s a boring tax and immigration case, right?  If any of you are basketball fans out there, you probably know of some of the racial comments that have been made about the New York Knicks’ Jeremy Lin.  And if you read the article that I read on CNN this morning, you might also know that for some reason, racism against Asians appears to be more socially acceptable than racism against other minority groups.  Saturday Night Live addressed that topic nicely, as you’ll see if you read the article yourself.  I suspect that in light of today’s culture, nobody will care much at all about the fact that Mr. and Mrs. Kawashima are going to be deported because they are Asian.  I hope that’s not the case.  I hope that people instead think about what really happened here: Mr. and Mrs. Kawashima, lawful permanent residents of the U.S. since 1984, made the unfortunate choice of filing false tax returns.  And now they are being deported?

Miami Dade Judge Follows Shelton Order and Declares Florida Statute section 893.13 Unconstitutional; Dismisses Charges Against More Than 30 Defendants

In an Order issued on August 17, 2011, Miami Dade Circuit Court Judge Milton Hirsch found that the Shelton order I discussed in my previous post is binding.  Judge Hirsch’s Order has the effect of dismissing drug charges against more than 30 people.  However, the dismissal is not automatic.  Judge Hirsch stayed the order for one week, granting the State of Florida time to file a notice of appeal.  (As would be expected, an article published by the Miami Herald indicates that the State will appeal the order.)

Not all Judges are ruling as Judge Hirsch.  Many are finding that the Shelton order is not binding, or is otherwise not decided correctly.   As noted in an article published in the Sun Sentinel, two other Miami Dade Judges refused to dismiss drug charges, unlike Judge Hirsch, as did another Judge in Pensacola.  No doubt, litigation over the Shelton ruling is just beginning.  Until this matter is decided by the Florida Supreme Court, and the United States Supreme Court, Florida criminal defense attorneys and their clients should expect a bumpy and unpredictable ride!

I Just Got Arrested for DUI! Should I Plea it Out or Take it to Trial?

While I was a prosecutor in Broward County, Florida, I  tried misdemeanor DUI cases for 1.5 years.  In my opinion, many of the top DUI defense attorneys are in Broward, and since there are a lot of DUI arrests there, the trial schedule is crazy.  I was in trial at least once a week, and oftentimes back-to-back.  I probably tried about 65 or 70 DUI cases in that 1.5 years.  The purpose of my post today is to pass along some important insider information that seasoned DUI defense attorneys may know, but others may not.  Some things to consider when deciding to plea out your DUI or take it to trial include:

1.)  In which county were you arrested?  Typically, the more north the county, the more conservative the Judges and juries.  That means that people in counties north of Palm Beach may be more likely to be found guilty by a jury than people who are in Miami Dade or Broward.  Also, people in counties north of Palm Beach may receive stiffer sentences than people in Miami Dade or Broward.  This is so because Judges and juries north of Palm Beach may  be less tolerant of even minor crimes than people in Miami Dade or Broward.

2.)  Who arrested you?  Some officers are highly trained for DUI cases.  They often make good witnesses because they are knowledgeable and can explain in specific details why they thought you should have been arrested for DUI.  If you have been arrested by one of these specially trained officers, it might be smart to take a plea.  But, if the officer who arrested you is not specially trained, you might want to take it to trial.  Some officers who don’t arrest for DUI very often have a hard time explaining to the jury exactly why they thought you should have been arrested, and that can make a jury feel uncomfortable.  It’s one thing to get arrested, but it’s another thing to actually convict someone, especially where the evidence is not so clear.

3.)  Was your arrest recorded on video?  Some (not all) officers who are assigned to DUI cases have video cameras mounted on the dashboard.  As soon as they think they need to investigate a possible DUI, they turn on the camera.  That means they may have recorded your driving pattern and all of the time you spent at the side of the road when you got pulled over.  If your video is “good” (meaning that there is no damaging information there, or very little), then you may want to take your case to trial.  If the jury doesn’t think you look drunk, you may not get convicted.

4.)  Did you take a breath test, urine test, or blood test?  Most DUI’s involve breath tests.  If yours did, and you blew very near the .08 limit, you may want to take your case to trial.  Juries may tend to sympathize with someone who was only a “little” over the limit.  Also, if you had a blood test or urine test, and your test results came back positive only for alcohol and no other drugs, then the jury might sympathize with you (especially if your level was near the .08 limit).  However, blood or urine test results which come back positive for other drugs may make the jury feel less sympathetic toward you.

5.)  Did your arrest involve alcohol, drugs, or prescription medication?  Juries can be very sympathetic to people who drank “just a little” over the limit, or who took prescription medication, or who smoked a little marijuana.  Juries tend to be less sympathetic to people who take harder drugs, like cocaine.

6.)  Did you perform roadside exercises?  If you did, and you did really well, a jury may have a hard time convicting you.  If you have a video showing how terrible you were, you might want to plea your case out.

7.)  Did you refuse to take a breath test and perform roadside exercises?  If you refused, and you did so politely, the jury might have a hard time convicting you.  But if you were nasty to the officer, and the officer was being polite, the jury might think that you were an angry drunk.

8.) How sympathetic is your case?  Lots of factors come to play when deciding how sympathetic your case can be.  Were you arrested after drinking at a bar all night?  Or were you arrested after taking prescription medication?  Are you an older person or younger person?  Were you nice to the police officer?  Was the officer a jerk?  The most important thing to remember for DUI cases is that juries have a hard time convicting someone they identify with.  Almost everyone, at one time or another, has gotten behind the wheel after drinking too much.  Most people don’t get caught.  When the people who were lucky enough not to get arrested get picked for jury service, they may remember their luck, and pass some on to you.


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