You Have The Right to Remain… Sugary

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Walter White knows his stuff. The Florida police, not so much.

We all have our vices, and some carry a higher price tag than others. Perhaps you imbibe; maybe you smoke. For Daniel Rushing of Orlando Florida, a weekly doughnut habit landed him 10 hours in jail – and now a $37,500 judgment.

In December 2015, Rushing – who just dropped a friend off for chemotherapy, and was then giving another friend a ride – was pulled over for speeding and failing to come to complete stop. After producing his license, the arresting officer, Cpl. Shelby Riggs-Hopkins, noticed a concealed weapons permit. Rushing acknowledged he had a gun, and was asked to step out of the vehicle. That’s when things get interesting.

In her report, Riggs-Hopkins stated she saw “a rock like substance on the floor board” which she recognized through her “eleven years of training and experience as a law enforcement officer…to be some sort of narcotic.” According to Rushing, however, that substance was in fact “sugar from a Krispie Kreme Donut that he ate.”

The check is in the mail! My phone was turned off! Stop sign? What stop sign?

One can only imagine the array of excuses out there. What’s harder to imagine is the truth of Rushing’s excuse when field testing results indicate methamphetamine – twice.

After being arrested and spending 10 hours in jail, Orlandopolice’s crime lab confirmed the ‘white crystals’ were not a controlled substance. Three days later, the State Attorney’s office dropped the case. Rushing hired William Ruffier to file suit. And, fast forward to 2017… you can piece together the rest.

In a troubling report by ProPublica and The New York Times, it has been found that  thousands of people are arrested every year based on false hits from these field kits. The kit manufacturer, The Safariland Group, has remarked the issue is with proper training on their use. And the Orlando police have since responded by stating additional training was issued. However, the issue persists around the country.

So, what’s the lesson?

Don’t eat while you drive.

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Bitcoins are NOT money?

 d6b179aecb76ff5af20a0314ced0de0e3036ca623fba316662d040285b98685cUnless you’ve been living under a rock the last few years (or maybe a ‘bricked’ phone, as it were), you’ve surely heard of Bitcoin by now – the digital currency… or… commodity… or, wait, what is it?

Exactly.

Bitcoin first gained significant attention when the Silk Road was exposed – an anonymous online market for the trade and sale of everything illegal, dangerous, illicit, and corrupt. From buying drugs, to hiring hitmen and prostitutes, the untraceable “currency” provided users with the ability to exchange ‘value’ for products and services without ever being tied to a government regulated or monitored transaction (i.e. credit cards, PayPal, etc). Although the FBI took care of the website, Bitcoin itself continued on. And, since then, its popularity has only surged as an online payment alternative. It even has its own exchange market, the BTC-E! However, it remains just an online exchange and not “real money” … right?

For one lucky Florida criminal, that questionable discrepancy just landed him a win.

In 2013, the Miami Beach Police, in conjunction with the U.S Secret Service’s Miami Electronic Crimes Task Force, set up a sting operation to weed out illegal activity via the Bitcoin market. They found Michell Espinoza, aka Michellhack, who it turned out was using Bitcoins to purchase stolen credit cards from the Russians. Fast forward through the operation to 2015 when Mr. Espinoza was arrested and charged with one count of “engaging in business as a money services business, to wit, a money transmitter” and one count of money laundering.

Sounds about as guilty as it gets, right? Then just how was the Defendant’s Motion to Dismiss granted? According to Florida State Court Judge Teresa Mary Pooler, Bitcoin is not money and therefore not within the purview of the criminal statutes charged.

In Judge Pooler’s Opinion, she articulates numerous reasons as to why Bitcoin cannot be considered money. For starters, “virtual currency” is treated by the Federal government as property for tax purposes (see IRS Notice 2014-21). To continue, however, Bitcoin is not commonly accepted by merchants; it has a highly volatile fluctuating market (at one time valued 18x greater than the U.S. dollar), with insufficient liquidity and an uncertain future value; and it is decentralized without a reserve, failing to be backed by anything. Oh, yea, and it “cannot be hidden under a mattress like cash and gold bars”.

… Uncertain future value, not backed by anything… If you ask me, that sounds a lot like the U.S. dollar

Regardless, I often write about how our legal system is playing catch-up with an increasing transition to digital ‘everything’. Passing new legislation can be an arduous, lengthy process of research, commentary, and amendment, which by the time is done could already be replaced by the next new thing. But when the topic at hand is currency – very much ‘the thing that makes the world go round’ – it’s not at all surprising to see added backlash by the judicial system; setting precedent which may only further weaken the dollar and/or encourage a shift away from Federally-issued currency is not a favorable position to take.

Eventually, this is an issue which the United States Supreme Court will have to weigh in on. In the meantime, Bitcoin will continue to be traded, exchanged, used and valued, as all things are in a free market.

Tax Fraud 101: Don’t Advertise It

downloadIn a story that should begin with “A Florida Man”, we instead find ourselves with Raheem L. McClain of Ozark, Missouri – who has just been arrested for soliciting tax fraud.

Just how far would you go for a tax deduction?

In an interesting twist on the theme, the story here begins with McClain’s alleged solicitation for purchasing childrens’ identification to claim as dependents on his tax return.

The IRS’s 2015 tax guidelines allow for a $4,000 exemption for each qualifying child dependent. To qualify for this exemption, the child must live with you more than half of the year and be under 19 at the end of the year, or under 24 and a full-time student for the year (defined as attending school for at least part of five calendar months during the year). Although there is no limit to the number of dependents one can claim, at a certain point it begins to work against the alternate tax / earned income credit, and so many parents with multiple children only claim some of them. As for the rest, well, that’s where McClain comes in.

In a blatant Craigslist post, he offered $750 per child to any parent willing to ‘lend their child’s deduction’ to him:

“WANTED: KIDS TO CLAIM ON INCOME TAXES – $750 (SPRINGFIELD,MO)

IF YOU HAVE SOME KIDS YOU ARENT CLAIMING, I WILL PAY YOU A $750 EACH TO CLAIM THEM ON MY INCOME TAX. IF INTERESTED, REPLY TO THIS AD.”

According to the Justice Department, McClain was caught doing this by a discrepancy in his returns. That is, it wasn’t so much the advertisement which caught the prosecutors’ attention; rather, one year McClaim claimed 1 son and 2 daughters, and the next year 1 daughter and 2 sons, all with the same names and identifiers.

Sound ridiculous? Sadly for humanity, McClain is not alone in advertising his stupidity (like this man who was arrested after advertising the sale of illegal tortoises on Facebook; or this hitman arrested for soliciting kills). Luckily, while many innocents get swept up into audits, the IRS audit and criminal investigation departments actually do find legitimate cases of fraud like these.

There’s Always Room for J-A-I-L

bill.cosby.meme.565x300Big news this week, as I’m sure you’ve already heard – charges were officially filed against Bill Cosby for “aggravated indecent assault“. But what you may not have heard, and is pretty remarkable for the circumstances of this case, is the deadline prosecutors had for doing so.

Here is the timeline:

2004: Now 12 years ago, Andrea Constand originally claimed Cosby had raped her. At the time, prosecutors for Montgomery County, PA declined to press criminal charges. Since then, numerous other women have stepped forward (many in CA, which becomes relevant later); however, prosecutors continued to withhold from pursuing any criminal action.

2014: A year ago, the Associated Press filed a motion to intervene in order to unseal documents related to the Constand lawsuit. From this came the infamous Cosby Deposition, during which he admitted to purchasing  Quaaludes to give to women he wanted to have sex with, and to giving them to at least one woman. Constand claimed to have been one such woman.

December 2015: Pennsylvania prosecutors finally file criminal charges.

So, what changed? Well, for one thing, the statute of limitations…

All states have a statute which limits the amount of time one has to bring certain charges, including crimes. Often, these vary depending on the seriousness of the charge (e.g. murder has no limitation, whereas many misdemeanors must be brought within 1 year). In Pennsylvania, the statute of limitations on major sexual offenses (including aggravated sexual assault) is 12 years – – I’ll give you a second to process that – – and prosecutors had only 2 days left to file charges against Cosby for the sexual assault of Constand.

In California, the statute of limitations is much shorter. So, for all of those other cases I had mentioned, there was little the local prosecutors could have done. But in PA, it’s a different story. So what really has been going on all of these years?

There is no doubt about the level of celebrity involved with this case, including a long-standing legacy of comedy, family, and public moral taught by Mr. Huxtable. And so, perhaps reminiscent of the O.J. Simpson trial, prosecutors must surely have been cautious in approaching such a charge. But while it’s often said “better late than never” (and in many cases that may be true), I can’t help but hope for justice, no matter the fame of the defendant.

If he is innocent, or guilty, let it be decided by a competent court – not by social media, T.V. news, or YouTube comedians.

Contact Sports: Criminal Assault?

89dbec91efb49516c59716551a59474d2b93404a4c10bdef1356841227d02f9bFrom Gladiators of the Pantheon, to “The Gladiators,” a Cleveland Arena Football team, people have always gawked and cheered at the brutal carnage of contact sports. It’s no surprise that rules have been toned down over the years, as civilization moved beyond the aqueducts and chariots of the olde world, but there has inevitably remained a level of physicality.

So where is that line between carnage and sport? For the Contra Costa County prosecutor’s office, it begins and ends with charges for in-game felony assault and battery.

A 15-year-old water polo player from Lafayette, CA is currently facing a criminal sentence for breaking an opponent’s nose during a tournament. Though no foul was called, allegedly captured on video is the “purposeful blow” to the Bellarmine player’s face – – in front of the goal, while playing in the known-aggressive 2-meter position of the known-physical contact sport of water polo.

Ever see a match of water polo? No? Well, imagine rugby, mixed with a dash of soccer, and all while treading water.

California Penal Code, Section 242, defines “battery” as the “willful and unlawful use of force or violence upon the person of another.” Certainly, the element of force is satisfied (just ask the broken nose). But, “unlawful”?

Signing up to play contact sports involves a necessary assumption of risk. Some of these risks are inherently obvious (like being tackled); some risks, on the other hand, are certainly not consented to by a player’s participation (like being intentionally kicked in the face). But society requires a balancing effort to both encourage sport and vigorous competition, and to discourage ‘foul’ play.

Cases like this have already been adjudicated across the country. Many states have adopted holdings that a player’s conduct must be more than a game’s rule violation, and more than ordinary negligence (that is, a lack of reasonable care under the circumstances). The defendant-player must be shown to have acted with intent to injure or with reckless disregard for the safety of the injured player. Conduct is “reckless” if the risk is known but consciously disregarded. In other words, the courts have set a particularly high bar when an athlete attempts to sue another player.

Still, it will be interesting to see what kind of precedent this case sets for high school sports.

Sexting – A Felony Sex Crime?

If your kids are doing it, maybe!

Bush Phone

If you don’t know what sexting is by now, I’m not going to be the one to tell you. But your kids know already, and that’s a problem.

According to North Carolina prosecutors, that problem may now come with felony sex crime charges. So if you don’t want your children to end up with criminal charges on their record (or in prison), or to be on a federal and state sex offender list, then listen up…

Cell phones – so common now that even the police have, for the most part, abandoned monitoring the CB radio emergency channel. But it’s not just adults with phones – it’s kids – your kids. And with those phones come personal digital cameras.

For two North Carolina teens, in a relationship, who engaged in consensual sexting without any coercion or distribution beyond themselves, that freedom now has the pair being tried as adults on multiple counts of felony sex crime charges.

Yes – really.

The Story

While under NC’s age of consent laws the two teens could legally have had sex with one another, sexting is considered a felony for possessing sexually explicit photos of a minor – – child pornography.

The boy – 5 counts for child pornography. (I will note though that the charges include having photos of himself on his own phone…). The girl – 2 counts of sexual exploitation as a minor (originally charged as both the victim and perpetrator… yep). However, she has since taken a plea deal dropping the felony charges, instead pleading guilty to a misdemeanor which will be expunged after 1 year of probation. The probation? For the next 11 months she isn’t allowed to own or use a cell phone (among other restrictions)…

People convicted of sex crimes, regardless of severity, are considered “sex offenders” by their respective state and face having their names added to state and federal sex offender registries. In other words, your children could, at only age 16/17, be registered sex offenders. Thanks, teenage hormones.

Seriously, have a talk with your kids.

According to a 2014 study by Drexel University, the majority of teens are now engaged in sexting (or have at some point). An even higher percentage, however, are entirely unaware that this ‘harmless’ fun (even with 100000% consent and intent) can be considered a felony crime. 

Parents – do you know what apps they are using?

More and more apps are being developed to secretly store photos on cell phones. This is a great example, hiding in plain sight as a calculator app – except, not really. Sure it works like one, and looks like one. But key in the secret passcode and you unlock a hidden vault for storing pics.

Unless your children are as innocent as Kimmy Schmidt, now would be a good time to have that talk.

Thanks for reading. Enjoy this “duck pic”

Duck Pic

Calling Off From Work? Stick to PTO

… because faking a crime may cost you more than a day off of work …

Mario Kidnapping

…like a year in jail and a $1,000 fine.

That’s how much a misdemeanor can cost you if found guilty. And for one Florida woman, Beverly Brooks, that’s the steep price faced for having that day off of work.

The afternoons can be rough on a full day shift; the long morning is behind you, but punching out for the day can’t seem to come soon enough. Taking paid time off (PTO) isn’t always an option, especially when you’ve already been seen healthy at work. But when the afternoon ahead looked too much for Ms. Brooks, her [not so smart] solution was to fake her own kidnapping.

Brooks, a certified nursing assistant, took off for break. When she didn’t return, a concerned co-worker called to see if she was all right or needed a ride back. That’s when Brooks claimed her boyfriend, James Vincent Hill Fennell Jr., was holding her against her will.

Under federal and most states’ law, kidnapping is generally defined as ‘the taking of a person from one place to another against his or her will’, or ‘the confining of a person to a controlled space’. The federal criminal code (18 U.S.C. § 1201) makes this a felony offense – carrying with it a possible prison sentences of 20+ years.

Luckily for this duo, the only charge was for “false report of commission of a crime” – a misdemeanor punishable only by 1 year in jail and $1,000 in fines.

So why did she do it? She “simply did not want to go back to work“,

Steep price to pay for those few extra hours off from work. Then again, at least she didn’t work herself to death (seriously, this happened).