Recently I reviewed a computer crime case where the dates on files on an SD card seized by the police, examined by the police computer forensic laboratory, and by a defense expert in computer forensics showed some unusual patterns in the dates of files that allegedly contained contraband. Those files on the SD-card were later the basis of criminal charges and an arrest. There were claims of evidence spoliation. “Spoliation” is a fancy word for tampering. Sometimes a Computer Crimes Experts can come in handy. During a lengthy interrogation by the Prosecutor there were some answers given that may apply to virtually any cases involving data stored on a mobile phone SD card.
Questions and Answers from Computer Crimes Expert testimony on SD Storage Devices in Mobile Devices
What are hash values in SD cards and stored files?
“These are the hash values of that. That is a method that I use to be able to correlate that picture with the picture on the SD cards, things like that; but it’s a fingerprint. Every file has a unique fingerprint.”
What is the creation date on a file stored on an SD card?
“I have seen instances where if a file was moved to another system, the creation date is what the current date is of that system. Because, as far as that system’s concerned, hey, it was created on my system today.”
What about iPhone, where there are no SD storage devices?
“For example, with iPhone being a proprietary system, you’re — you’re talking about something that’s an encrypted system and we constantly stay abreast . . . . “-
Do both police and forensic examiners use Cellebrite?
“[W]e — as a company, in general, stay abreast of that, the changes there, as I’m sure your group has the same — same challenges. With that, we’re — we ‘ re always challenging our vendors. There’s three primary vendors we use, including Cellebrite, which you guys use, as well. But challenging them to stay abreast of it.”
What is the job of a computer forensic examiner in case involving cell phone data and SD storage devices?
“To look at it with the eyes of a computer forensic expert to determine whether the evidence being portrayed was accurate or if there was evidence being omitted or not looked at from a different way and we all know that when you’re looking at it from a prosecution point of view, you look at evidence from that angle. If you’re looking at it from a defense point of view, since I work both sides, I know I’m going to look at the evidence differently in cases because in one you’re trying to find underlying causes one way or another. So I felt my job in this was to look at the evidence to determine whether or not everything was being described accurately and completely.”
Are there different types of files stored on mobile device SD cards?
“When you talk about system files, it’s a little bit more complex. The system does many, many things to make your life work better on a computer. And storage locations could be temporary areas; the system just uses and works with. That’s very beneficial to us in a forensic area because that can be very telling as far as how the system was used, what the system is doing, who’s doing what and what’s automatic, what’s not, what’s user initiated, what’s system initiated, all that is good. You can tell that from the temporary areas. There’s also caching areas.”
What are Cache files on an SD card?
“Caching areas are when the computer does something and then it goes and does something else, it caches it out, caches something back in; that’s very telling of what’s going on in the system to us. Who initiated, whether it’s automatic, whether it’s deliberate, stuff like that. There is allocated resources, unallocated resources, deleted areas; there’s just a — just a plethora of stuff that the system does and there’s a lot of different storage locations. Now the ones that I’m focusing in on, for this particular case and this particular report, are the ones that, you know, give us telltale sign of something. And I would have to read it real quick here to know what we’re getting at. I was hoping you were going to ask something specific in here, but that’s basically an overview of what storage locations are.”
What is the significance of where files are stored on an SD Card?
“So storage locations, I gave you an example to help you understand how storage locations work, the difference between pictures and documents, stuff like that. The system is the same way. It does certain things, it will store them in different places. The other key point here then, also is that in — when you’re talking about the system storage locations, they’re not accessible by the user. These are areas that obviously if the user could access those, you could — you could destroy your system. But these are typically areas that are not accessible by the user. By us, yes, from a forensic point of view.”
Why are system storage files important?
“Because, depending on how the device acquired a particular piece of information, whether it be media or text or whatever, how it was — how it came to exist on the phone matters. And system storage can help us to determine that.”
Can date meta data on an SD storage device used on a phone be altered?
“I’ve seen people fool that and they’ll put a cell phone in a shield bag in which case it doesn’t make connection; and there is an app, I think, that can change the date. So there’s people that could do things like that but in these particular cases, these were active and that’s really not the issue that I want to get into. The problem is that depending on the software use or how things come about — and it’s called a feature. And there’s a feature that when you take a file and you put it onto a system, that it maintains the original creation date that that particular, let’s say photograph you made, was maintained. And it’s a feature because you want to know that the Christmas of 2004 occurred on December of 2004, not when you happened to move it over there. So it is a feature of something. But then there are some operations when you move things over, and I’ve seen it before because I’ll see stuff come to be on a system, and they’re milliseconds apart, the creation date. And I know that those were — that was a copy operation performed.”
“You plug in the SD card and the metadata is put on the SD card. Last access date in — in doing the correlation was — would be updated on the phone, as well. But let’s say, for instance, if you put
an image, a brand new image on there, and the creation date was last year and you put another image on there, maybe you copied three images and the way you copied it it happened to pick up the date of the computer which was, you know, maybe you changed the date of the computer and you wanted to show it to be last month. Then when you take that SD card and you plug it in the phone, you’re going to see one image with that date from last year as a create date and then you’re going to see three images, milliseconds apart, that are from last month. What I’m saying is that the phone becomes slave to the SD card as far as the metadata –“
Can computer crimes experts discover data files placed on a mobile device without the user’s knowledge?
“[J]ust realize that when I’m talking about the push, that the technology is there, that the . . . potential is there for stuff to be pushed on your computer. And of course, the user is oblivious to all this going on. And that’s why you could actually go to a website that had unfortunate information on it and your computer now is a recipient of that information and you, the user, are none the wiser.”
“Sometimes the user doesn’t even know they went somewhere. Sometimes in — in this world of malware and viral attacks and exploitation of compu — of people’s identities, there’s a lot of times — like, and I use the term unfortunate, is if you do a search, one thing these search engines do not do is assess where it’s going to take you and you could click on something and then it could actually take you to a site that doesn’t display anything but it certainly puts stuff on your computer and then redirects you to something else to show you what you think you wanted to see. There’s a lot of smoke and mirrors going on behind the scenes that the user’s not aware of. That’s the push technology I’m
talking about . . . .”
“Whether or not you saw it, whether or not you meant to go there, that’s — that does not — those two statements don’t come into play when it comes to push. . . . Push includes whatever the — and I’ll call it malicious in some cases, but whatever the site, or whatever the originating prospect that might be. It could be a server, it could be a site, it could be almost anything. Whatever it is, it will push on there
and I can’t tell you what that will be. In — I can tell you in general what it is. In general it’s thumbnails.’
“The fact that Windows does that, is a feature to allow you to operate better. But how many times have we heard about there being a hole, an exploited hole in Windows that Microsoft had to go in
and patch with a new release or with — with a new update they patched this hole or they discovered this — this whatever was open and they come in. You take a feature on something and you get a
website that exploits that feature, I think you kind of then answered your question because then okay, well whose fault is it? Well, it’s a feature of Windows to do this. But they’re — the reason it was written was to optimize web browsing, that’s it. Now to push big stuff on there, and push other stuff on there, when people are taking it to its limit and exploiting it and doing the wrong thing, then I’d say it’s the fault of the site.”
Here are some statistics from Tampa’s Hillsborough County Jail. We have collected the top 50 ways to end up in Tampa, Florida’s jail and have shared them below.
Drug and Traffic charges dominate the Top Ten. Theft charges seem to take the second group of ten. We have reviewed a number of other arrest records and it appears there are 1656 different ways to end up arrested for criminal charges and inside of this major metropolitan jail.
Top 50 Ways Into the Hillsborough County Jail
|1.||Driving W/License Canc Susp Or Revoked||TRAF6075||322.34.2A||Misd||2nd|
|2.||Possession Of Cocaine||DRUG1101||893.13.6A||Fel||3rd|
|3.||Possession Of Drug Paraphernalia||DRUG8100||893.147.||Misd||1st|
|4.||Grand Theft 3rd ($300 – $5,000)||THEF2001||812.014.2C1||Fel||3rd|
|5.||Possession Of Cannabis Less Than 20 Grams||DRUG2103||893.13.6B||Misd||1st|
|6.||Battery (Domestic Violence)||BATT1002||784.03.1AB||Misd||1st|
|7.||Driving Under The Influence||TRAF1012||316.193.1||Misd||2nd|
|8.||Obstructing Or Opposing An Officer Without Vio||COPS1000||843.02.||Misd||1st|
|9.||Driving While License Revoked-Habitual Offendr||TRAF6078||322.34.5||Fel||3rd|
|10.||Petit Theft ($100 Or Less)||THEF1011||812.014.3A||Misd||2nd|
|11.||Possession Of Controlled Substance||DRUG9101||893.13.6A||Fel||3rd|
|12.||Dealing In Stolen Property||THEF5000||812.019.1||Fel||2nd|
|13.||Uttering A Forged Instrument||FORG2000||831.02.||Fel||3rd|
|14.||Battery (Touch Or Strike)||BATT1000||784.03.1AB||Misd||1st|
|15.||Trespass On Prop Other Than Structure Or Conve||TRES4001||810.09.1A2A||Misd||1st|
|16.||Grand Theft Motor Vehicle||THEF2201||812.014.2C6||Fel||3rd|
|17.||Contempt Of Court||ADMIN007||901.11.||Infractions|
|18.||Obtain.Prop. For Worthless Ck.(Less Than $150)||WOCK2000||832.05.4||Misd||1st|
|19.||False Name To Law Enforcement Officer||COPS2060||901.36.1||Misd||1st|
|20.||Delivery Of Cocaine||DRUG1200||893.13.1A||Fel||2nd|
|21.||Possession Of Open Container||TPOR0064||003.40.B||Municipal/Local|
|22.||Manufacture Dist Dispense Posses Con Sub- Fed||USCA0003||021.841.|
|23.||Operating Unregistered Vehicle||TRAF5015||320.02.1||Misd||2nd|
|24.||Petit Theft 1st||THEF1010||812.014.2E||Misd||1st|
|25.||No Valid Drivers License||TRAF5099||322.03.1||Misd||2nd|
|26.||Possession Of Cocaine With Intent To Sell Or D||DRUG1300||893.13.1A||Fel||2nd|
|27.||Possession Of Cannabis||DRUG2102||893.13.6A||Fel||3rd|
|28.||Aggravated Assault With Deadly Weapon||ASSA5005||784.021.1A||Fel||3rd|
|29.||Battery On A Law Enforcement Officer||BATT1010||784.03.1A||Fel||3rd|
|30.||Driving Under The Influence Unlawful Breath A||TRAF1015||316.193.1C||Misd||2nd|
|31.||Attaching Tag Not Assigned||TRAF5040||320.261.||Misd||2nd|
|32.||Possession Of Cannabis With Intent To Sell Or||DRUG2300||893.13.1A||Fel||3rd|
|33.||Aggravated Battery Deadly Weapon||BATT5000||784.045.1A2||Fel||2nd|
|34.||Aggravated Battery (Deadly Weapon)||BATT5000||784.045.1A2||Fel||2nd|
|35.||False Info On Pawnbroker Form (Under $300)||PAWN8010||539.001.8||Fel||3rd|
|36.||Criminal Mischief Less Than $200||CRMS1000||806.13.1B1||Misd||2nd|
|37.||Obstructing Or Opposing An Officer With Violen||COPS2000||843.01.||Fel||3rd|
|38.||Burglary Of An Unoccupied Conveyance||BURG0022||810.02.1B4B||Fel||3rd|
|40.||Felon In Possession Firearm Firearm Possess||GUNS0420||790.23.1||Fel||2nd|
|41.||Obtain.Prop. For Worthless Ck (More Than $150)||WOCK3000||832.05.4||Fel||3rd|
|43.||Fraudulent Use Of Credit Card Over $100||FRAU3000||817.61.||Fel||3rd|
|44.||Robbery (Less Than $300)||ROBB3000||812.13.12C||Fel||2nd|
|45.||Aggravated Battery Great Bodily Harm||BATT5050||784.045.1A1||Fel||2nd|
|46.||Criminal Mischief $200 To $1000||CRMS2000||806.13.1B2||Misd||1st|
|49.||Criminal Mischief $1000 Or More||CRMS3000||806.13.1B3||Fel||3rd|
|50.||Carrying Concealed Firearm||WEAP1000||790.01.2||Fel||3rd|
A Florida lawyer has won an appeal in a case involving internet libel and online reviews of the attorney. The case involves divorce and allegations made in reviews that are quoted in the complete opinion of the The Fourth District Court of Appeal in West Palm Beach, Florida.The online reviews “contained allegations that [lawyer] lied to [client] regarding the attorney’s fee. Two of the reviews contained the allegation that [lawyer] falsified a contract. These are factual allegations, and the evidence showed they were false. ” The court entered judgment in favor of [attorney] and awarded punitive damages of $350,000.”
Excerpt from Internet Libel Case With Punitive Damages of $350,000
“Both … admitted to posting the reviews on various internet sites. The evidence showed that … had agreed to pay her attorney the amount reflected on the written retainer agreement—$300 an hour . . . . [B]oth admitted at trial that [attorney] had not charged . . . four times more than what was quoted in the agreement. The court entered judgment in favor of [attorney] and awarded punitive damages of $350,000.”
Complete Opinion of the Court in Attorney Online Review and Internet Libel Case in Florida
DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
COPIA BLAKE and PETER BIRZON,
ANN-MARIE GIUSTIBELLI, P.A., and ANN-MARIE GIUSTIBELLI, individually,
[January 6, 2016]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 12-22244 (12).
Copia Blake, Kansas City, MO, and Peter Birzon, Weston, pro se.
Ann-Marie Giustibelli, Plantation, for appellees.
After a non-jury trial, the trial court awarded the appellee, attorney Ann-Marie Giustibelli, damages in this libel and breach of contract case. In their initial brief on appeal, the appellants, Copia Blake and Peter Birzon, raised five issues. After briefs were filed and the court spent considerable time entertaining the issues raised, Birzon filed a notice that he and the appellee had settled the matter and that he was withdrawing his appeal. Blake did not join in the notice. We note that even if she had, we would not have dismissed the appeal. One issue Blake and Birzon raised involves the application of free speech protections to reviews of professional services posted on the internet. We affirm in all respects, but this issue merits discussion as it presents a scenario that will likely recur, and the public will benefit from an opinion on the matter. See Caiazzo v. Am. Royal Arts Corp., 73 So. 3d 245, 248-49 (Fla. 4th DCA 2011) (recognizing that appellate court has discretion to retain jurisdiction over an appeal after it has been voluntarily dismissed, particularly where “the case presents a question of public importance and substantial judicial labor has been expended” (quoting State v. Schopp, 653 So. 2d 1016, 1018 (Fla. 1995))).
Attorney Giustibelli represented Copia Blake in a dissolution of marriage proceeding brought against Peter Birzon. After a breakdown in the attorney-client relationship between Giustibelli and her client, Blake and oddly, Birzon as well, took to the internet to post defamatory reviews of Giustibelli. In response, Giustibelli brought suit, pleading a count for libel. She also brought counts for breach of contract and for attorney’s fees, alleging that Blake still owed her money related to the divorce representation.
Blake’s and Birzon’s posted internet reviews contained the following statements:
This lawyer represented me in my divorce. She was combative and explosive and took my divorce to a level of anger which caused major suffering of my minor children. She insisted I was an emotionally abused wife who couldn’t make rational decisions which caused my case to drag on in the system for a year and a half so her FEES would continue to multiply!! She misrepresented her fees with regards to the contract I initially signed. The contract she submitted to the courts for her fees were 4 times her original quote and pages of the original had been exchanged to support her claims, only the signature page was the same. Shame on me that I did not have an original copy, but like an idiot . . . I trusted my lawyer. Don’t mistake sincerity for honesty because I assure you, that in this attorney’s case, they are NOT the same thing. She absolutely perpetuates the horrible image of attorneys who are only out for the money and themselves. Although I know this isn’t the case and there are some very good honest lawyers out there, Mrs. Giustibelli is simply not one of the “good ones[.]” Horrible horrible experience. Use anyone else, it would have to be a better result.
No integrity. Will say one thing and do another. Her fees outweigh the truth. Altered her charges to 4 times the original quote with no explanation. Do not use her. Don’t mistake sincerity for honesty. In her case, they’re not at all the same. Will literally lie to your face if it means more money for her. Get someone else. . . . Anyone else would do a superior effort for you.
I accepted an initial VERY fair offer from my ex. Mrs. Giustibelli convinced me to “crush” him and that I could have permanent etc. Spent over a year (and 4 times her original estimate) to arrive at the same place we started at. Caused unnecessary chaos and fear with my kids, convinced me that my ex cheated (which he didn’t), that he was hiding money (which he wasn’t), and was mad at ME when I realized her fee circus had gone on long enough and finally said “stop[.]” Altered her fee structures, actually replaced original documents with others to support her charges and generally gave the kind of poor service you only hear about. I’m not a disgruntled ex-wife. I’m just the foolish person who believes that a person’s word should be backed by integrity. Not even remotely true in this case. I’ve had 2 prior attorneys and never ever have I seen ego and monies be so blatantly out of control.
Both Blake and Birzon admitted to posting the reviews on various internet sites. The evidence showed that Blake had agreed to pay her attorney the amount reflected on the written retainer agreement—$300 an hour. Blake and Birzon both admitted at trial that Giustibelli had not charged Blake four times more than what was quoted in the agreement. The court entered judgment in favor of Giustibelli and awarded punitive damages of $350,000.
On appeal, Blake and Birzon argue that their internet reviews constituted statements of opinion and thus were protected by the First Amendment and not actionable as defamation. We disagree. “[A]n action for libel will lie for a ‘false and unprivileged publication by letter, or otherwise, which exposes a person to distrust, hatred, contempt, ridicule or obloquy or which causes such person to be avoided, or which has a tendency to injure such person in [their] office, occupation, business or employment.’” LRX, Inc. v. Horizon Assoc. Joint Venture ex rel. Horizon-ANF, Inc., 842 So. 2d 881, 885 (Fla. 4th DCA 2003) (quoting Thomas v. Jacksonville Television, Inc., 699 So. 2d 800, 803 (Fla. 1st DCA 1997)).1
1 Statements of pure opinion are not actionable. Morse v. Ripken, 707 So. 2d 921, 922 (Fla. 4th DCA 1998). However, “there is no constitutional value in false statements of fact.” Id. (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974)). If a factfinder “were to conclude that any of the [assertions of fact] in the [publication] were false, [this] would allow the [factfinder] to disregard the pure opinion defense.” LRX, 842 So. 2d at 886.
Here, all the reviews contained allegations that Giustibelli lied to Blake regarding the attorney’s fee. Two of the reviews contained the allegation that Giustibelli falsified a contract. These are factual allegations, and the evidence showed they were false.
As part of their “free speech” claim, Blake and Birzon point out that the judgment references defamation “per se.” They argue that libel per se no longer exists as a legal concept after the decision by the United States Supreme Court in Gertz, 418 U.S. 323 (1974). “[A] publication is libelous per se, or actionable per se, if, when considered alone without innuendo: (1) it charges that a person has committed an infamous crime; (2) it charges a person with having an infectious disease; (3) it tends to subject one to hatred, distrust, ridicule, contempt, or disgrace; or (4) it tends to injure one in his trade or profession.” Richard v. Gray, 62 So. 2d 597, 598 (Fla. 1953); see also Shafran v. Parrish, 787 So. 2d 177, 179 (Fla. 2d DCA 2001) (“When a statement charges a person with committing a crime, the statement is considered defamatory per se.” (citation omitted)). In Gertz, the Court held that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Gertz, 418 U.S. at 347. After Gertz, the Florida Supreme Court recognized that, with respect to a libel action against the media, it is no longer accurate to say that ‘“[w]ords amounting to a libel per se necessarily import damage and malice in legal contemplation, so these elements need not be pleaded or proved, as they are conclusively presumed as a matter of law.’” Mid-Fla. Television Corp. v. Boyles, 467 So. 2d 282, 283 (Fla. 1985) (quoting Layne v. Tribune Co., 146 So. 234 (1933)). Thus, after Gertz, in libel cases involving media defendants, fault and proof of damages must always be established.
Notably, the instant case does not involve a media defendant. Libel per se otherwise still exists in Florida. See Lawnwood Med. Ctr., Inc. v. Sadow, 43 So. 3d 710, 727-29 (Fla. 4th DCA 2010) (containing discussion of the presumption of damages that applies in defamation per se cases); Perry v. Cosgrove, 464 So. 2d 664, 666 (Fla. 2d DCA 1985) (reversing trial court’s grant of a motion to dismiss a libel per se action brought by a former editor of a newspaper against his supervisor, who had written a letter to a reader suggesting that the editor was fired for reasons that were shameful); Owner’s Adjustment Bureau, Inc. v. Ott, 402 So. 2d 466, 470 (Fla. 3d DCA 1981) (concluding that statements in a letter amounted to libel per se as a matter of law).
As to the remaining arguments raised on appeal, we decline to
address them as they are not sufficiently briefed, not preserved, or lack merit.
MAY and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
What Happens When Police Search Your Lost Cell Phone That Has Illegal Material On It?
The story begins in a Walmart in Florida. The owner lost their phone at Walmart. After he left the phone, it was found, and the owner agreed to pick it up from the store. The owner of the phone failed to pick the phone up from the store. The store manager looked at the phone in an effort to find a photo of the owner. When the manager found contraband on the phone, she called the cops – police search lost cell phone.
Search Warrant for an Abandoned Cell Phone
Police search lost cell phone – The cops waited 23 days to get a search warrant. A Florida Court ruled that this did not constitute an unreasonable delay to obtain a search warrant. First, the court found that the defendants had hoped the store manager would not report the materials found on the phone to the police. Second, the phone owner had filed an insurance claim and replaced the phone with the exact same model. The decision to not retrieve the phone from the store, coupled with the filing of an insurance claim, and replacing the phone with the same model constituted an abandonment of ownership of the phone. Search and seizure law requires that those who challenge a search and seizure must have standing to challenge the search. In this case, the phone owner had no standing to challenge the search, the phone and any rights the owner had to challenge the search and seizure were gone. The court also addressed the Private Search Doctrine that supports searches by citizens, that otherwise might be illegal if performed by the police or the government.
Sentenced to 600 Months in Federal Prison
By the way, the court found that a 600 month sentence for the materials found on the phone was just fine. The phone owner entered a written plea agreement and the sentence was a possible outcome that while it was as harsh as the judge could impose, it was within the terms of the plea agreement.
“When Vo [store manager] failed to meet Sparks [phone owner] with the phone as the two had previously agreed, Defendants knew how to find Vo to get their phone back. But Defendants did not return to their Walmart store and look for Vo. Nor did they ask for Walmart’s assistance in obtaining their phone, found in its store, by its employee. They also did not file a report with Walmart or the police complaining that Vo would not return their phone, despite their requests. Instead, they made a conscious decision to stop pursuing the phone, even though they knew how to get it back with reasonable effort. That decision—whether because Defendants hoped that Vo would not report them if they did not continue to seek the phone or because Defendants simply thought recovery of the phone was not worth their reasonable effort—can be viewed only as a deliberate decision to abandon the phone. Because Defendants abandoned their phone within three days of having lost it, they lack standing to challenge law enforcement’s 23-day delay between recovering the phone and obtaining a search warrant to search it.”
The Private-Search Doctrine
“The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. The protection the Fourth Amendment affords, however, extends to governmental action only; “it is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’” United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656 (1984) (quoting Walter v. United States, 447 U.S. 649, 662, 100 S. Ct. 2395, 2404 (1980) (Blackmun, J., dissenting)). So once an individual’s expectation of privacy in particular information has been frustrated by a private individual, the Fourth Amendment does not prohibit law enforcement’s subsequent use of that information, even if obtained without a warrant. Id. at 116, 104 S. Ct. at 1656; see id. at 117, 104 S. Ct. at 1658-59.”
Read Complete Opinion Here: http://media.ca11.uscourts.gov/opinions/pub/files/201412143.pdf
DUI Defense Book
In this 86 page color illustrated DUI Defense book you can research the harsh punishment imposed under Florida’s strict driving under the influence laws. Journey from the arrest at the roadside, to the county jail, to a vehicle being impounded, to the posting of bond, and to the realization that the driver’s license office is going to try to keep the driver off of the road. From the arrest, to the days or months in court, it all can seem overwhelming. But there is information you can use, and there is hope for you, a friend, or a loved one. Knowledge lies within this book. Learn to fight like an expert.
The table of contents to the DUI expert from Tampa, Florida’s book below lists the topics covered.
UPDATE: The DUI Defense Attorney book is now available on iTunes. The DUI book is available for download with iBooks on your Mac or iOS device, and with iTunes on your computer. The expert criminal defense attorney eBook can also be read with iBooks on your Mac or iOS device.
Amazon just picked up the #DUI book – thanks everyone.
Amazon Author Page is here:
Here it is on Barnes and Noble.
Read a sample of the DUI Attorney book here on Google Books:
By Richard Georges, Esquire May 16, 2015
“This new book by my former student, Casey Ebsary, is a quick, easy read full of useful informaton about what to do if charged with DUI. There are many details that can be marshaled by the arrested driver, and Casey outlines them for the reader. Don’t go it alone. Get legal advice; but, before you are arrested, read this book. Of course, my solution, don’t drink and drive, will help more. But, that said, you need to know the law if you are going to limit the impact of an arrest.”
By Michael Maddux, Attorney-at-Law May 16, 2015
“The author has taken his two decades plus of experience as a state prosecutor and board-certified criminal trial attorney and distilled his insight into a practical application for the layperson. This is the one guide you will want to march you through the complicated terrain of DUI litigation. Those who own this guide are sure to find comfort in their journey through an unpleasant process that affects a broad spectrum of people. Given the significant costs of a DUI knowing how to survive one and defeat the typical outcome makes this book a bargain.”
By Deva Caprice May 17, 2015
“If you are not fortunate enough to have an attorney as capable as Mr. Ebsary as your counsel, at least you can take the distillation of his wisdom and practical experience and teach your public defender a thing or two before your day in court and then maybe you’ll stand a chance and won’t have to use your lawn mower as transportation. Good Luck! But why count on luck when the law actually can be on your side…as long as you are privy to the rare and precious factoids provided in the concise and easy to read guide. Cheers!”
#DUI: The People’s Guide to Fighting Like An Expert
By W.F. ”Casey” Ebsary Jr (Tampa, Florida 2015)
DUI Book Table of Contents
Introduction: Do You Need a DUI Lawyer?
3-Step Roadmap to Getting Back on the Road
The Traffic Stop
Vehicle Seizures and Forfeitures
DUI Checkpoint Invalid
Law Enforcement DUI Checkpoint or Roadblock Manual
DUI Arrest Contests
No Bad Driving
Traffic Stop by Non Law Enforcement
The Roadside Encounter
Field Sobriety “Tests” | Not Really
Video Recording of Police Encounters
Roadside Policy on DUI Arrests
Refusal of Roadside Testing for DUI
Five Field Sobriety Exercises
HGN – Horizontal Gaze Nystagmus
Five Things to Know About Drug Recognition Experts
Walk and Turn
One Leg Stand
Finger to Nose
ABC – Reciting the alphabet
Failure to Follow Proper Procedures
Phony Reporting Roadside Sobriety Investigation
DUI Detention After a Crash
Targeting Restaurants and Bars
The Breath Test
Refusal to Submit to Chemical Test
Implied Consent Warning
What Does a Cop Suspected of DUI Do When Asked?
What About a Driver’s Miranda Rights?
Breath Test Results Report
Witnesses Required For Court
Broken Breath Machines
Calibration of the Breath Machine
Tinkering with Intoxilyzer 8000 Breath Machines
Roadside Breath Testing Not Used
Portable Breath Testing for Under Age 21
The Driver’s License
Florida DUI License Suspension
DUI Conviction on Driving Record for 75 Years
Summary of Florida DUI License Suspension Laws
Failure to Challenge Suspension Within 10 Days
Consequences of a DUI
Business or Employment Reinstatement
Refusal of a Blood Test
Florida Standard Jury Instruction for DUI Breath Alcohol
Jury Trial Victories
Acquittal of a DUI Charge
First Time DUI Penalties
Second Time DUI Penalties
How to Go to Jail
Third time DUI Penalties
How to Get a Felony DUI
Commercial Drivers and DUI
Hardship License Prohibited
Copyright Law Office of W.F. “Casey” Ebsary Jr.
Published May 16, 2015
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Copyright Law Office of W.F. “Casey” Ebsary Jr.
Published May 16, 2015
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A crew member of a ship claimed he did not know drugs were on board the ship. He was indicted in the Middle District of Florida’s Tampa Division. The indict them all, let the jury sort them out indictment charged many aboard with knowing the ship had drugs on board. This is not a rare claim where smugglers tend to minimize the need to know that 10-100 million dollars of cocaine is on board the vessel. The best way to understand the case is to read it here.
“the Court finds the polygraph evidence to be admissible at trial to either impeach or corroborate witness testimony”
Update – Comments from Lead Defense Counsel
“There were three important lessons learned from this experience: 1) it is important to have the testimony of a qualified scientist, such as Dr. David Raskin, to testify in the Daubert hearing as the polygraph examiners are usually not well-versed enough in the scientific studies supporting the technique; 2) using a highly qualified examiner with extensive prior government experience is also critical, and 3) the relevant questions must be simple enough but carefully constructed so the results of the exam are indisputably meaningful.”
“[I]it helped to submit Dr. Raskin’s declaration in advance of the Daubert hearing so that all of the detailed support for the polygraph’s admissibility was on the record in advance, making the actual hearing go much more smoothly.”
Lead Defense Counsel Contact Information is Christophir A. Kerr, 13801, Walsingham Rd. #A-154, Largo, FL 33774, 727-492- 2551 .
Facts in Federal Drug Case
“Defendant Angulo-Mosquera, a 53-year old deckhand and cook, was indicted on September 4, 2014 in the Middle District of Florida on charges related to the seizure of 1,700 kilograms of cocaine concealed on board a freighter known as the “Hope II” in August 2014. Defendant Angulo-Mosquera is a Colombian national with no known criminal record in any country. He has never before been in the United States. Defendant Angulo-Mosquera denies any knowledge of the drugs found concealed on the Hope II and any involvement of any kind in the illegal drug trade.”
Is the Lie Detector | Polygraph Admissible in Federal Court?
A United States District Judge in Florida’s Middle District, Judge Honeywell ruled in this Order that the court would allow admission of a polygraph performed by a former FBI agent on a defendant at trial. The defendant will testify at trial and has passed a pretrial polygraph. Here are the relevant questions:
1. Did you know those drugs were on that ship before the Coast Guard boarded the ship? Answer: No.
2. Did you know those drugs were on the Hope II before the Coast Guard boarded that
ship? Answer: No.
3. Did you know those drugs were on that ship before the Coast Guard found them in
August? Answer: No.
Polygraph Case Excerpts:
“Defendant Angulo-Mosquera plans to testify in his own defense at trial and requests that the results of the polygraph examination be admitted into evidence to corroborate his testimony. The Government objects arguing that polygraph examinations are just “one step above” junkscience and are “not suitable for juror consumption.” TR at 46:15-24, 49:16-17. The results of the polygraph examination, if admitted at trial, would be presented through expert witness testimony.”
“[T]the Court held an evidentiary hearing to determine the admissibility of the polygraph evidence and expert testimony regarding same, under Federal Rule of Evidence 702 (“Rule 702”) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). At the hearing, Defendant Angulo-Mosquera presented the testimony of Dr. David C. Raskin, who for 44 years has conducted laboratory and field research on polygraph techniques for the detection of deception, taught university courses about polygraph techniques, trained government and law enforcement polygraph examiners, and published extensively on polygraph techniques, regarding the reliability of polygraph examinations in general and the examination in this case specifically.”
Junk Science Claim
“Defendant Angulo-Mosquera plans to testify in his own defense at trial and requests that the results of the polygraph examination be admitted into evidence to corroborate his testimony. The Government objects arguing that polygraph examinations are just “one step above” junk science and are “not suitable for juror consumption.” TR at 46:15-24, 49:16-17. The results of the polygraph examination, if admitted at trial, would be presented through expert witness testimony.”
“Thus, in determining the admissibility of expert testimony under Rule 702, courts must engage in a rigorous three-part inquiry, determining whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.”
“Some factors that bear on this inquiry are: 1) whether the expert’s theories, methods or techniques can be or have been tested; 2) whether the technique, method, or theory has been subject to peer review and publications; 3) whether the known or potential rate of error of the technique when applied is acceptable; and 4) whether the technique, method, or theory has been generally accepted in the scientific community.”
“Thus, the Court finds the polygraph evidence to be admissible at trial to either impeach or corroborate witness testimony. Further specifics regarding the admission of the polygraph evidence will be determined at the time of trial. Accordingly, it is hereby ORDERED that Defendant’s Motion for an Evidentiary Hearing on Admission of Polygraph Evidence (Doc. 67), construed as a motion to determine the admissibility of the polygraph evidence under Federal Rule of Evidence 702, is GRANTED. The Defendant may present the polygraph evidence, through expert testimony, to corroborate or impeach witness testimony at the trial in this matter.”
Tweets From The Feds
Tampa Federal Criminal Defense Attorney notes that tweets are now discoverable in federal criminal cases. Because the Feds (United States Attorneys) were caught hiding evidence, the DOJ (United States Department of Justice) has written a memo on information to provide criminal defense attorneys. After 3 years, the memo has been released. Potential Sources of Discoverable Information include: Agency Files, Confidential Informant Files, Evidence, Gathered Information, Emails, Tweets, Text Messages, Memoranda, and Notes, etc.
Just obtained an internal memo from the Feds discussing all aspects of what the police and prosecutors must disclose to targets of federal prosecutions, including a warning that some tweets and social media use must be disclosed by Prosecutors in criminal cases. In short: Feds were caught hiding the ball and now must follow the rules in this detailed memo.
“tweets are now discoverable”
The new guidelines come from an investigation of case where United States Attorneys ( not in the Middle District of Florida ) were improperly concealing evidence. The memo may have been the result of prosecutors that improperly with held evidence in the case of a United States Senator who was convicted by a jury. Days later the Justice Department dropped the charges. After the Senator’s wrongful conviction, to cure these improprieties, the U.S. Department of Justice ordered prosecutors to draft memos on information to provide criminal defense lawyers – here are their marching orders.
Discover tweets: the Feds have
We initially received a tip from the Federal Defender, Eastern District of California. A complete copy of the United States Department of Justice Discovery Memo is available here. A video including the Attorney General’s statements on the problems with handling of evidence and the solution is included at the bottom of this post.
“The biggest problem is that nobody outside the prosecutor’s office actually knows what those policies are.”
The U.S. Department of Justice (USDOJ) ultimately released 73 individualized manuals for many federal district offices. There are links to the other Florida Federal Districts located at the end of this post. Florida has three districts. They are the Middle District, the Southern District, and the Northern District.
The Point: Feds were caught hiding the ball and now must follow the rules in this memo.
In the State court system, most prosecutors have a “open file” policy that ensures that whatever information is contained in the prosecutor’s file is available to defense attorneys. The lone exception has been state cases where police and prosecutors want to protect the identity of confidential sources. In police reports these frequently appear as “CS” for confidential source or “CI” for confidential informant.
“written and unwritten statements are discoverable in federal criminal cases”
Discovery Sources Bullet Points
- Investigative Agency’s Files
- Confidential Informant Files
- Evidence and Information Gathered During Investigation
- Documents or Evidence Gathered by Civil Attorneys
- Emails, tweets, text messages, memoranda, notes
- Personnel and Disciplinary Files
- Handwritten Notes of Agents
- Presentence Reports
Tampa Federal Criminal Defense Attorney on Discovery Practices
In 20 or so years of Federal Criminal practice in the Tampa Bay area the best course of action considered the fact: “rules for what prosecutors must share and when remained almost entirely secret. . . .” USA Today, filed a Freedom of Information Act request that forced the hand of the Federal Prosecutors to pull back the curtain on what must be provided to defense attorneys under the Constitution and Federal Rules of Criminal Procedure.
“it took the department nearly three years to release the policies”
“The biggest problem is that nobody outside the prosecutor’s office actually knows what those policies are.” said Timothy O’Toole of the National Association of Criminal Defense Lawyers (NACDL). According to USA Today, “it took the department [U.S. Department of Justice] nearly three years to release the policies from 74 U.S. attorneys’ offices . . . .”
Overview of the Federal Prosecutor Manual
Federal Rules of Criminal Procedure Rule 16 (b)
“Most criminal defense attorneys immediately request that evidence be produced at the initial appearance”
As a starting point, “To trigger the government’s reciprocal discovery rights defined in Federal Rules of Criminal Procedure Rule 16 (b), the defendant must request discovery.” says a footnote in the document. The manual defines the scope of persons including law enforcement agencies and staff from whom investigative information should be obtained. Most criminal defense attorneys immediately request that evidence be produced at the initial appearance or arraignment or detention hearing. The manual puts in writing the types of information available to defend federal criminal defendant by an exhaustive listing of what constitutes “discovery” or “discoverable information.”
Information Helpful to the Defense
“regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal”
The memo specifically instructs Assistant United States Attorneys (Prosecutors) that “[a] prosecutor must disclose information that is inconsistent with any element of any crime charged against the defendant or that establishes a recognized affirmative defense, regardless of whether the prosecutor believes such information will make the difference between conviction and acquittal of the defendant for a charged crime.” USAM 9-5.001 C 1.
Limit Use of Reports in Court
“continue to object to use of the report”
Although the defense may get a report that includes witness statements, the manual reminds prosecutors to limit the use of statements in the reports. Especially when defense attorneys try to use the reports in cross-examination of witnesses in court. The memo states in part, “unless the witness has adopted the memorandum as his statement, AUSAs [Assistant United States Attorneys] should continue to object to use of the report in cross examination as if it were the witness’ statement.” See Page 9 of the Federal Prosecutor’s Memo.
Disclose Written and Unwritten Favorable Information
“discussions cannot be avoided by failing to memorialize these events”
Sometimes police try to prevent helpful information from falling into the hands of the defense. To that end, the cops would not write down everything. They would fail to include helpful information in their reports. In a most remarkable requirement, the memo reminds prosecutors that, “[t]he duty to disclose to the defendant the substance of what a witness has said during interviews, debriefings, or informal discussions cannot be avoided by failing to memorialize these events. If any such events occur that are not memorialized in an interview report, the AUSA should determine what the witness said during the session and disclose the content of the witness’ statements to the defense. AUSAs should emphasize to agents the importance of memorializing all impeaching information.” See Page 10 of the Federal Prosecutor’s Memo.
The memo also extends prosecutors’ obligation to disclose to preparation of witnesses for trial. “The duty to disclose to the defendant the substance of what a witness has said during a pre-trial preparation session cannot be avoided by failing to memorialize it.” See Page 11 of the Federal Prosecutor’s Memo.
Who is Part of the Prosecution Team?
“know which agencies have played a role in the investigation”
To prevent prosecutors from using claims that favorable information was not available to disclose, the memo explicitly describes who is a part of the prosecution’s team. “‘prosecution team’ is defined as including ‘federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.’ The AUSA needs to know which agencies have played a role in the investigation and make all reasonable inquiries to ascertain what pertinent case information exists. When identifying members of the prosecution team, AUSAs should err on the side of inclusiveness . . . .” See Page 12 of the Federal Prosecutor’s Memo.
Excerpts from the U.S. Attorney’s Manual
Responsibility of AUSA(s)
The responsibility to produce all discoverable information in a criminal case lies with the AUSA(s) assigned to the case. To fulfill this responsibility, AUSAs should consider several matters:
• What & When: What are the policies, rules, statutes and case law that define what must be produced and when must it be produced? (See II. Laws, Rules and Policy Governing the Production of Discoverable
Information (What Must Be Produced and When?))
• Who is part of the prosecution team: AUSAs are obligated to produce information that is within the possession of the prosecution team; thus, defining the scope of the prosecution team is critical. (See III. Who is Part of the Prosecution Team: Gathering and Reviewing Potentially Discoverable Information)
• Where to look: Once the prosecution team has been identified, AUSAs must ensure that all discoverable information is located, reviewed and produced as required, including agency investigative and administrative files, CI files, emails, PSRs, law enforcement Giglio, etc. (See IV. Potential Sources of Discoverable Information)
• How to produce and track: AUSAs must decide in what form to produce the discovery (bates numbered, hard copy, e-copy, available for inspection, redacted, etc), and must keep a detailed record of all discovery produced. (See V. Manner of Production and Recordkeeping) See Page 2 of the Federal Prosecutor’s Memo.
Scope of Criminal Discovery in Federal Cases
“For the purposes of this memorandum, “discovery” or “discoverable information” is not limited to Federal Rule of Criminal Procedure 16 information, but also includes all information and materials the
government must disclose to the defendant pursuant to the Jencks Act and Federal Rule of Criminal Procedure 26.2; Federal Rule of Evidence 404(b); Brady, Giglio, USAM 9-5.001 and 9-5.100; any applicable local rules; and the any applicable standing discovery order in a criminal case.” See Page 3 of the Federal Prosecutor’s Memo.
Memo Policies Must be Followed
“Deviation from the policy of production of reports of witness interviews requires Criminal Chief or Deputy Criminal Chief approval.” See Page 9 of the Federal Prosecutor’s Memo.
Not All Witness Statements are Created Equal
“Be careful not to characterize a witness interview as a Jencks Act statement in discovery letters or court pleadings”
“The Jencks Act defines “witness statements” as … “(1) a written statement made by [a] witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by [the] witness and recorded contemporaneously with the making of such oral statement; or (3) a statement, however taken or recorded, or a transcription thereof, if any, made by [a] witness to a grand jury.” 18 U.S.C. § 3500 (e).
“[U]nless the witness has adopted the memorandum as his statement, AUSAs should continue to object to use of the report in cross examination as if it were the witness’ statement.” See Page 9 of the Federal Prosecutor’s Memo.
Helpful Information Must be Disclosed – Written or Not
“Memorializing Favorable Information and the Duty to Disclose. The duty to disclose to the defendant the substance of what a witness has said during interviews, debriefings, or informal discussions cannot be avoided by failing to memorialize these events. If any such events occur that are not memorialized in an interview report, the AUSA should determine what the witness said during the session and disclose the content of the witness’ statements to the defense. AUSAs should emphasize to agents the importance of memorializing all impeaching information.” See Page 10 of the Federal Prosecutor’s Memo. (underlining in original).
Witness Interview and Preparation – Continuing Duty to Disclose
“The duty to disclose to the defendant the substance of what a witness has said during a pre-trial preparation session cannot be avoided by failing to memorialize it.” See Page 11 of the Federal Prosecutor’s Memo.
Video – Attorney General Holder on the Discovery Memo
Other Florida Federal District Court Discovery Manuals
Questions on Tampa Federal Criminal Issues?
“I kid you, not. A slip and fall attorney for the defense claimed the woman assumed the risk of injury by wearing high heels.”
Slip and Fall cases are defended by insurance company lawyers who are skilled at having cases dismissed. In what is sure to be heralded as one of the more ridiculous-sounding legal precedents of our time, structurally precarious footwear and the people who wear them are not at fault for damages therein incurred. The legal ramifications of this earth-shattering choice are currently unknown, but the immediate emotional response from this legal expert is one of unbridled and visceral laughter.
High-heel shoes can Make you Rich
I kid you, not. A slip and fall attorney for the defense claimed the woman assumed the risk of injury by wearing high heels. A lady in high heels sued the owner of a slippery floor also known as Premises Liability. If someone has a slip and fall on slippery floor, the floor owner can be found negligent. A creative defense attorney claimed Comparative negligence, that the high-heeled girl was fifty percent comparatively negligent and therefore SHE was at fault for wearing five-inch high-heel shoes. Specifically the Court poo-pooed the argument that the lady was “negligent for her slip and fall injuries because she was wearing high heels at the time of the fall . . . .”
Here is what the Slip and Fall Defense Lawyer Says:
” I submit to the Court — and I had a ruler the other day — when you’re talking about a five — a four-to-five-inch heel, there is almost an assumption of risk in that”
Slip and Fall Appeals Court Says:
“[The lawyer] “failed to sustain [his] burden of proving that [the lady] created a foreseeable zone of risk by wearing high-heeled shoes to work . . . .”
My Ten-Year-Old daughter Says:
” That’s a silly case.”
My young daughter, a huge fan of fancy shoes asked me what I was reading. I told her about this case. She said, “That’s a silly case.” She is right, unless you happen to be the injured victim of a slippery floor and come across this defense. The defense can destroy otherwise valid claims by trying to blame the victim who has fallen on a slippery floor.
Typical Slip and Fall incidents include injuries that happen due to:
Slipping and Falling on slippery surfaces, such as icy or wet surfaces
Slips and Falls caused by carelessness in floor or walkway care
Slips and Falls caused by disregard of safety measures in hazardous areas
Slips and Falls caused by poor maintenance of property or failure to repair known hazards
Here is What a Jury Must Decide in a Slip and Fall case:
Florida Standard Jury Instruction 401.20 Issues on Plaintiff’s Claim Premises Liability
The [next] issues on (claimant’s) claim, for you to decide are:
a. Landowner or possessor’s negligence (toward invitee and invited licensee):
whether (defendant) [negligently failed to maintain the premises in a reasonably safe condition], [or] [negligently failed to correct a dangerous condition about which (defendant) either knew or should have known, by the use of reasonable care,] [or] *[negligently failed to warn (claimant) of a dangerous condition about which (defendant) had, or should have had, knowledge greater than that of (claimant)]; and, if so, whether such negligence was a legal cause of [loss] [injury] [or] [damage] to (claimant, decedent or person for whose injury claim is made).
You are losing Money by Not Wearing High-Heeled Shoes
Dr. Seuss: A Guide by a Tampa Criminal Defense Attorney
“Lawyers cite these classics in official documents with pride”
As a Tampa Criminal Defense Attorney, I can say with certainty that the works of Theodore Geisel, more commonly known under his pseudonym Dr. Seuss, are not a body of literature one would expect to see cited nor mentioned in a court of law. However, as America is often a place where impossible sounding things happen with alarming frequency, it is not as hard as you would think to find a legal precedent for this phenomena. There are appeals courts that have used the Doctor and there is at least one trial court that has used Dr. Seuss as authority for a legal opinion. More about that later.
One Fish Two Fish: A Fish Is A Fish No Matter What You Wish.
The US Supreme Court reeled in a few #CopsGoneWild who convinced a Federal Prosecutor to indict and prosecute a fisherman near Tampa, Florida. The court overturned the conviction obtained for destruction of records. Fish are obviously not records. The Supreme Court said, “A fish is, of course, a discrete thing that possesses physical form. See generally Dr. Seuss, One Fish Two Fish Red Fish Blue Fish (1960).” Yates v United States, 574 US ____ (2015) ( Docket No. 13-7451).
Cat In The Hat: Criminal Defendant: Not That Cat
“admitted committing this crime and indicated he did it with a man adorned in a Dr. Seuss ‘Cat in the Hat’ hat”
A criminal defendant dragged these beloved characters into a courtroom “Mr. Howard was charged as a principal in the armed robbery of a convenience store that was committed by two men. At Mr. Howard’s trial, the State presented the testimony of a man who had admitted committing this crime and indicated he did it with a man adorned in a Dr. Seuss ‘Cat in the Hat’ hat, whom he knew as “Bear.” The State had other evidence tending to establish that Mr. Howard was ‘Bear’.” Howard v State 869 So. 2d 725, (2d DCA 2004).
Horton Hears A Who: Judges On Mission To Repeat Repetition
“the elephant, meant what it said and said what it meant”
In a collision of litigants in a personal injury suit, the Judge was incensed that someone had missed a court date. With regard to instructions to appear for court proceedings, ” like Dr. Seuss’s Horton the elephant, [the court] meant what it said and said what it meant.” Mourning v Ballast 32 Fla. L. Weekly D 1673 ( 4th DCA 2007 )
Floridians went to war over a boat slip in Palm Beach. The court noted, “the Florida Supreme Court, like Dr. Seuss’s Horton the elephant, meant what it said and said what it meant. . . ” Graham v Yeskel Trust 928 So. 2d 371 (2006). I don’t know what the court meant, but this is about Dr. Seuss in court.
A United States District Court Judge Elizabeth Kovachevich instructed the lawyers in “The words of Horton the Elephant come to mind: “I meant what I said, and I said what I meant. An elephant’s faithful one-hundred percent!” Dr. Seuss, Horton Hatches the Egg.” Campero v ADS Foodservice 916 F. Supp. 2d 1284 ( SD Fla 2012 ).
My Name is Seuss: I am not a Doctor
“Seuss entered a plea of nolo contendere to possession of marijuana in excess of 100 pounds”
There was an unfortunate defendant named Seuss who was detained by police who threatened to get a warrant. Seuss v. State, 370 So. 2d 1203 (Fla. 1st DCA 1979) (threats to get a warrant, prolonged detention). Poor Jack Seuss “Seuss entered a plea of nolo contendere to possession of marijuana in excess of 100 pounds . . . .” The opinion continued, “Seuss had been detained for more than an hour; he had refused repeated requests that he open the vehicle and allow the agents to inspect; he was informed that he could not leave until the vehicle was searched . . . .” Seuss walked away from the charges when the court ruled that threats to get a search warrant were baseless. supervisor represented that if Seuss continued to refuse, he could get authority to search anyway. . . . The court found the cops should have gotten the search warrant rather than detain gangapreneur Seuss for over an hour while attempting to obtain his “consent.”
Cat In The Hat: Intellectual Property Law: Source of A Kerfuffle Fee Faw.
“The Cat Not in the Hat! A Parody by Dr. Juice”
In the 1990’s Dr. Seuss Enterprises became entangled in a case that was rejected by the United States Supreme Court. Penguin Books USA, Inc., et al. v. Dr. Seuss Enterprises, L.P. 521 U.S. 1146 (1997). “The Cat Not in the Hat! A Parody by Dr. Juice, a work poised to supply a “fresh new look” at the O.J. Simpson double-murder trial. Katz’s rhymes, the illustrations provided by Chris Wrinn, and the book’s packaging by the manufacturer defendants *fn1″ (the individual and corporate defendants are referred to collectively hereinafter as “Penguin”) mimic the distinctive style of the family of works created by Theodor S. Geisel, better known as Dr. Seuss.”
“Dr. Seuss has made a strong showing as to its copyright claims”
The court ruled, “Dr. Seuss has made a strong showing as to its copyright claims, and has raised serious questions providing a fair basis for litigation as to its trademark claims. The balance of the hardships tips markedly in its favor. A likely copyright infringement appears on the back cover of Penguin’s work, and instances of possible trademark infringements of the stove pipe hat appear on the front and back covers and throughout the work.”
“Defendants are therefore enjoined, pending trial of this action, from directly or indirectly printing, publishing, delivering, distributing, selling, transferring, advertising, or marketing the book The Cat Not in the Hat! A Parody by Dr. Juice.” Penguin Books USA, Inc., et al. v. Dr. Seuss Enterprises, L.P. (1996) http://ca.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19960426_0000015.SCA.htm/qx
Yertle The Turtle: Yertle The Turtle Heightens Fertile First Amendment Hurdle!
“I’m king, and you’re only a turtle named Mack.”
In Texas, Yertle The Turtle made an appearance when a judge scribbled a judge blurted “”Silence,” the King of the Turtles barked back, “I’m king, and you’re only a turtle named Mack.” Seuss (T. Geisel), Yertle The Turtle and Other Stories, Random House (1950). The court continued, “Dr. Seuss’ rhyming narrative about Yertle, The Turtle, concludes: “And the turtles, of course . . . All the turtles are free As turtles and, maybe, all creatures should be.” The court quipped in the context of employees’ first amendment rights. Davis v. Williams, 598 F.2d 916 ( 5th Cir 1979 ).
One Fish Two Fish: A Fish Is A Fish No Matter What You Wish.
“conduct did not run afoul (or a fish)”
One legal expert has said, “A fish is still a fish, but it is not a tangible object under 18 U.S.C. Section 519” says legal scholar Solomon Wisenberg. Wisenburg quipped “The Court ruled 5-4 that Yates’ conduct did not run afoul (or a fish) of 1519, because the little fishies were not tangible objects under that particular statute . . . .” Check out the White Collar Law Blog here.
Stetson Law School Professor Ellen Podgor then joined the conversation, “The recognition by these dissenting justices of the growing problem of overcriminalization in the United States is an important step. In many ways this decision is really a 9-0 decision in that the plurality tossed the fish case out because it did not fit in this sea. ” See Professor Podgor’s Take on this Federal Criminal Case Here.
Seuss Landing: Your Injury? Judge Responds With Fury!
Finally, Universal Studios Orlando was the site of a war over the “Seuss Landing” project in Orlando, Florida. Whiting v US Fidelity 2006 U.S. Dist. LEXIS 40456 ( MD Fla 2006 ).
The End – My Friend
Perhaps in the future, scholars will revile at our society’s use of books relegated to the status of children’s literature. But I await a future where Tampa Criminal Defense Lawyers cite these classics in official documents with pride.
Dr. Seuss Titles:
Yertle The Turtle: Yertle The Turtle Heightens Fertile First Amendment Hurdle!
Seuss Landing: Personal Injury? Judge Responds With Fury!
One Fish Two Fish: A Fish Is A Fish No Matter What You Wish.
Cat In The Hat: Intellectual Property Law: Source of A Kerfuffle Fee Faw.
Horton Hears A Who: Judges On Mission To Repeat Repetition