David Edelstein’s work on both state and federal criminal cases has been featured in several media outlets. Journalists also frequently contact him for insight into criminal cases as an experienced state and federal defense lawyer.
Florida Chief Justice: Skip Work in Courts Until June, Daily Business Review
Disbarred Coral Gables Attorney’s Testimony Gets Former Client Acquitted Midtrial, Daily Business Review
Diplomatic immunity won’t fly for Marc Wabafiyebazu, Canadian teen in Miami shootout case, Canadian Broadcasting Corp. (CBC News)
Canadian diplomat’s son killed in Miami, CTV News
Credit Card Confusion Sends Man to Jail, NBC 6 (WTVJ)
CSI: Miami Consultant David Edelstein Helps Professionals Caught Between a Rock and a Hard Place. Attorney at Law Magazine
George Zimmerman not guilty in murder of Trayvon Martin. Miami Herald
Libre bajo fianza banquero acusado de fraude en Miami, El Nuevo Herald
Miami-Dade: Hundreds pay for training in bogus jobs, Sun-Sentinel
CRIMINAL JUSTICE PAIN JUST BEGINNING
Little bottle of pills and Florida’s tough drug sentencing law have imperiled Penny Spence’s hopes of becoming a nurse. Her case, critics say, illustrates why the law needs to be changed.
Late one night last January, the 33-year-old Pembroke Pines woman was driving home from her waitress job, exhausted from working all night and caring for her ailing mother all day.
She veered off the road and hit a tree. Though she wasn’t hurt, three Coral Springs police officers responded to the accident, including a SWAT team member. The SWAT officer spotted a pill bottle in her purse, reached into the car and seized it. It turned out to be filled with Percocet pills.
Spence told the police that she had gotten the pills from her mother but had no prescription for them. She was using the narcotic pills, she said, to self-treat a painful back condition. She had no prior criminal record, and officers did not suspect she was intoxicated or impaired in her driving.
But because she had 48 pills, which weighed 42 grams, Spence was charged with drug trafficking — even though Spence insisted the pills were for her personal use.
Under Florida’s mandatory minimum laws for drug offenses, trafficking charges are triggered by drug weight, without consideration of intent to distribute or prior record. If a person is arrested with more than 25 pounds of marijuana, more than 28 grams of cocaine or more than five Percocet pills — which typically consist of 99 percent Tylenol — law enforcement authorities may bring charges of drug trafficking rather than mere possession. Prosecutors have the discretion to charge up or down.
If convicted of drug trafficking, a defendant faces a mandatory sentence of at least three years in prison. The mandatory minimums rise for larger amounts. Those possessing 150 kilograms of cocaine or 30 kilograms of OxyContin or morphine — the equivalent of about 33,000 Percocet pills — are subject to a mandatory minimum of life.
Spence is facing 25 years — unless she accepts a deal offered by Broward County Assistant State Attorney A. Theodore Daus III. Under that deal, she would get two years of house arrest in exchange for a guilty plea. But then Spence would have a drug trafficking and felony record. That would kill her hope of becoming a nurse.
“This has completely transformed my life,” Spence said. “I feel the way the laws are written is too harsh for someone like me, a nonviolent first-time drug offender. That’s what drug court and drug treatment was set up for.”
The Washington, D.C.-based Families Against Mandatory Minimums said Spence’s case demonstrates what’s wrong with mandatory minimum drug laws across the country. The organization argues that such laws give prosecutors too much discretion and judges too little.
“I think the situation points out how a one-size-fits-all sentence doesn’t work,” said Laura Sager, the group’s national campaign director. “The punishment in this case simply does not fit the crime.” Sager contended that the prosecutor is overreaching, and the law doesn’t allow the judge to serve as a check on prosecutorial discretion.
But prosecutor Daus expressed amazement that anyone would criticize the house arrest deal he offered Spence — something not all narcotics defendants receive.
“If I had said, ‘She’s getting 25 years in prison, there’s no deal,’ you’d have a good story,’ ” Daus said. “But I think I made her a fair deal. She would have no prison time. It shows the system does work. I think [FAMM] should be giving me an award.”
Spence, he said, “just wants to have her cake and eat it too.”
Sager disagreed. “This charge will follow Penny for the rest of her life,” she said. “The consequences are severe for future employment. The prosecutor is using the mandatory minimum as a bargaining tool to get a guilty plea.”
Broward has a specialized drug court that has served as a rehabilitative model for the state. But under state law, only those charged with drug possession, not drug trafficking, can be referred there.
Critics say Spence’s case also highlights disparities in how the justice system handles different people accused of drug offenses.
Two years ago, part-time Palm Beach resident Rush Limbaugh came under investigation after he was accused of illegally purchasing and possessing thousands of powerful prescription pain pills — including OxyContin, the so-called hillbilly heroin — worth hundreds of thousands of dollars. He admitted a drug addiction and entered a treatment program for several weeks.
Yet Limbaugh so far faces no criminal charges in Palm Beach County. His Miami attorney, Roy Black, has waged an aggressive campaign to prevent authorities there from gathering evidence in the case. The state’s investigation is continuing.
Costly to taxpayers
Mandatory minimums for drug crimes gained popularity throughout the country in the late 1980s as part of the burgeoning war on drugs. Politicians promised that such laws would deter crime. Mandatory minimums were adopted in nearly every state, and on the federal level as well.
The laws give prosecutors more power in charging crimes, and take sentencing discretion away from juries and judges. While juries still decide on guilt, they and the judges do not decide sentences. Those are pre-ordained by a schedule of mandatory minimums.
Prosecutors often use mandatory minimums to push defendants into accepting plea deals. Defendants in many cases are forced to plead guilty to crimes they did not commit rather than face harsh prison sentences, critics say.
But as jails and prisons have become packed with first-time and relatively minor drug offenders, mandatory minimums have lost some popularity. That’s largely because the bulging prison and jail population of drug offenders is becoming too costly to taxpayers.
Various mandatory minimum drug laws were rolled back in Michigan, Louisiana, Indiana and Connecticut. With FAMM leading the charge — and making its appeal to save tax dollars — efforts are under way in New York and Michigan to further amend the laws.
On the federal level, the U.S. Supreme Court last January overturned the federal mandatory criminal sentencing system on Sixth Amendment grounds, and ordered that the guidelines were to be used by judges as advisory only. Legal experts say judges still are generally following the guidelines.
In Florida, however, there is no momentum to change the mandatory minimum drug laws. In fact, there are frequent efforts by lawmakers to enact new mandatory minimum laws.
“There are plenty of Floridians who are first-time offenders and are victims of these laws,” said Robert Batey, a criminal law professor at Stetson University in St. Petersburg and Tampa Bay chapter president of FAMM. “But there is no legislation afoot to change these laws that I know of.”
The mandatory minimum laws continue to enjoy bipartisan support. State Rep. Ari Porth, D-Coral Springs, who is also a prosecutor with the Broward state attorney’s office, said he supports mandatory minimums, as does Rep. Dan Gelber, D-Miami Beach, a former federal prosecutor.
“As a prosecutor, I like the idea of having control,” Porth said. “It takes control from the judge and offers consistency throughout the state,” Porth said.
“Generally I support them,” Gelber said. “However, there need to be escape valves that reflect the appropriate circumstances.”
A break on bond
But FAMM argues that the mandatory minimum drug laws lead to gross injustices. It points to the case of Tampa resident Richard Paey. The wheelchair-bound, chronic pain patient was arrested for drug trafficking last year after filling dozens of prescriptions for pain pills through an out-of-state doctor.
Paey chose to fight the charge rather than accept a plea deal and was convicted. The father of three, recently diagnosed with multiple sclerosis, is now serving 25 years in prison. He receives his pain medication in prison by morphine pump.
Spence’s case is equally compelling, her supporters and FAMM representatives say. Her sister, Chrystal Weaver of Pembroke Pines, has been meeting with lawmakers and telling them Penny’s story to try to persuade them to change the law. She is helping start a South Florida chapter of FAMM.
At the time of Spence’s arrest, she was the main caregiver for her ill mother, who suffered from Parkinson’s disease and has since died. In addition, Spence argues that police may have violated the law by reaching into her car and removing the pills from her purse. She was not tested for intoxication.
Spence spent one day in Broward County Jail before posting bond. She is fortunate in one respect. Broward Circuit Judge Susan Lebow let her bail stand at $2,000, the bail amount for a drug possession charge. That was Spence’s original charge before it was upgraded to trafficking. If the bail had been set at a standard amount for drug trafficking, it would have been $500,000, and Spence would still be in jail.
Weaver originally called Roy Black to represent her, but learned that his fee was $100,000, which she couldn’t afford. She eventually hired Miami attorney David Edelstein, who charged her $20,000 to handle the case. Edelstein did not return calls for comment.
South Florida legal experts say Spence was unlucky to be arrested in Broward, where State Attorney Michael Satz is known for his hard-line stance on drug defendants.
“There’s no question that Mike Satz is tough on these types of crimes,” said Michael Pasano, president of the criminal section of the American Bar Association and a partner at Zuckerman Spaeder in Miami.
Charles B. Morton Jr., Broward’s chief assistant state attorney, defended his office’s policy on drug offenses. A prosecutor, he said, “may get a reputation as being tough. But I don’t see this office as unfair or unjust in any way in regard to mandatory minimums. We take into account the background, character, record and surrounding circumstances of every case.”
Pasano noted that even in Broward, defendants face “the luck of the draw” in which prosecutor handles their case. “You can get a good or bad prosecutor in any county. And they are the ones who make the charging decisions.”
Weaver said she and her sister still aren’t sure whether they will accept prosecutor Daus’ deal. They want the case referred to drug court, which is designed for first-time drug offenders. There, defendants are offered drug treatment and probation as alternatives to prison and house arrest.
But under the mandatory minimum laws, Spence is ineligible for drug court, Daus said.
“A law that makes you plead guilty to something you didn’t do is wrong,” Weaver said. “Penny is not a drug trafficker. She should be able to plead guilty to possession. That’s a fair thing to do.”
“Think about it,” Weaver added. “If you have a bad toothache and a friend gives you five pain pills to tide you over and you’re unlucky enough to get pulled over by cops, you’re going to jail. Maybe for years.”
MISTAKEN ARREST AND NO APOLOGIES
MIAMI, Florida – Virginia Fatima Garcia-Perez, making lunch for her 9-year-old son Anthony, answered a knock at the door of her Kendall home at 11:30 a.m. June 9. There stood three U.S. marshals with an arrest warrant for Virginia Tirado Garcia — conspiracy to distribute cocaine, from a 1993 indictment out of Dallas.
Garcia-Perez, 36, a Procter & Gamble rep who sells Bounty and Charmin to independent grocers, was stunned. ”You must have the wrong person,” she insisted. Minutes later, they took her away — in chains, handcuffs and leg shackles — while her boy cried.
The marshals showed her a copy of Tirado Garcia’s driver license photo. ”Sir, that’s not me.” She pointed out the different birth dates: Garcia-Perez’s is May 13, 1967; the fugitive’s is May 3, 1968. And besides, ”I’ve never been to Texas.” The marshals told her to stop denying it, she says. ” ‘Things could get worse for you if you lie.’ ”
They booked her. A pretrial services officer conducted an interview. What places do you frequent, he asked? Barnes & Noble, she replied. At the Federal Detention Center, corrections officers confiscated her clothes, strip searched her, gave her a green prison jumpsuit and locked her up. ”Horrible,” she says.
She remained in custody for two days before U.S. Magistrate William Turnoff let her out on a $100,000 signature bond — a promise to appear and a pledge of assets in case she didn’t. She had to call in twice a day and report on Tuesdays. On June 24, the feds admitted what she said all along — mistaken identity. A Dallas federal judge quashed the arrest.
Defense attorney David Edelstein says she’s lucky she got out that fast. He persuaded Dallas federal prosecutors to compare his client’s fingerprints to those of Tirado Garcia, taken by the INS when she arrived from Cuba in the late ’80s. No match.
The marshals relied on info from the Drug Enforcement Administration, the feds say in court docs. They won’t identify the marshals who arrested Garcia-Perez.
A humiliating experience — and ”nobody ever apologized,” says Garcia-Perez, who had no criminal record. Her civil lawyer, Michael Gongora, is pursuing a false imprisonment claim.
MIAMI, Florida – A Nevada man pleaded no contest to stalking TV personality Marisa Del Portillo, a host of El Escandalo del Mediodia seen on WAMI-69.
Gilbert Rodman, 49, showed up at TeleFutura network’s office in Miami-Dade to try to see her. He repeatedly called to make a date, sent her flowers, a Harley-Davidson watch and an ”intimate note,” MDPD cops say. Del Portillo, 37, said she was concerned for her safety.
Rodman, arrested on Sept. 24, told detectives he moved here from Las Vegas ”for the sole purpose of meeting” Del Portillo. He gave police a statement: “I want to be in the Latin/Mex entertainment business . . . I meant no harm.”
County Judge Fred Seraphin released Rodman on Oct. 27, ordering him to stay away from Del Portillo. ”Just an eager but awkward suitor,” says Rodman’s defense lawyer, David Edelstein. “There’s nothing to suggest he had any malicious intent.”
MIAMI, Florida – Center court to criminal court: Jameka Jones, former guard for the Miami Sol. Jones, 24, was a player in a female burglary ring, cops say.
Jones allegedly drove the getaway car in the Jan. 23 break-in of a $600,000 home in Bal Harbour. She and three gal pals — Waleeah ” Wa Wa” Neloms, 20; Tyquandra ”Ty” Stephens, 19; and Nikitha La France, 18 — are set for trial Wednesday. They’re facing 20 years.
Village police Chief Tom Hunker says it’s a slam dunk — three nabbed at the scene, plus Stephens confessed.
The four cruised for a house to hit after they breezed through an open guard gate in Bal Harbour and stopped at a house on Bal Bay Drive, detective Leo Quinn says. Stephens, wearing gloves and toting a hammer, smashed a window, climbed inside and opened the front door. By then, a security guard called police, and Officer Kenny Klingman pulled up and questioned the trio. Stephens slipped out a second-story sliding glass door — and jumped from the balcony, Quinn says. Blood at the crime scene matched Stephens’ DNA profile, police say.
Stephens and Neloms are also charged in an armed burglary in Miami-Dade and in Broward.
Neloms’ lawyer, assistant public defender Joel Denaro, says she is a ”sweet girl” — a passenger in a car, ”wrong place, wrong time.” Neloms’ adoptive mother, Tara Johnson, 32, is a Miami-Dade corrections officer. Jones’ lawyer, David Edelstein, says she is a ”dedicated athlete” who unwittingly gave the other girls a ride. “Hanging out with the wrong people.”
Jones played for the WNBA’s Sol in 2000, the inaugural season, says Ron Rothstein, 60, head coach/general manager of the defunct team. “A real good kid.”
The other defense lawyers could not be reached for comment. Prosecutor: Kelly Eckley. Case is before Circuit Judge Henry Leyte-Vidal.
MIAMI BEACH POLICE SERGEANT PAUL MASTERS ACTIONS, THREATENS MEDIA AND FIRST AMENDMENT RIGHTS
MIAMI BEACH, Florida – According to what this publication has learned, on October 11, 2004, Sergeant Paul Masters of the Miami Beach police department took part in some police activities at 621 Washington Avenue. Oscar Maita, a businessman of that same location, was troubled with the officer’s actions and with camcorder in hand, went to the medium strip of the avenue and stood on the strip to film the action.
This recording obviously caused the Sergeant some discomfort and proceeded to tell Maita to cease. What happened is all a matter of the police records. City Debate received a copy of the police report written by the arresting Sergeant.
It reads that Maita was filming and did not stop when the officer told him to. Masters then approached him and confiscated his camera, then proceeded with a formal arrest. Maita was reported to have slapped Masters’ hand during the handcuffing procedure.
The County Court records stated Maita was charged with first; violating State Statute 934.03, “Interception and disclosure of wire, oral or electronic communications,” a felony. Charge two; State Statute 784 – ” Battery,” also a felony and charge three; 843.02 “Resisting an officer without violence,” a misdemeanor.
Maita was taken to the County jail and had to post a bond at a cost of $1,100 (10%) to cover the $11,000 bail bond needed for his release. The arrested claims his camera was confiscated, and so too his wallet, presumably containing sum amount over $1,000.
This writer went to the hearing dated November 2nd 2004, held in the courtroom ( 1351 N.W. 12th St. courtroom 4-8) with Judge Israel Reyes presiding. Shortly after my arrival, Attorney David M. Edelstein entered. He stated he was representing the accused. The judge called the case and Edelstein requested a continuance until November 23rd. Judge Reyes approved this and so motioned the continuance until that date.
Outside the court room, it was found out by this writer, that the prosecution was bargaining to drop the “Communication Interception” charge (see previous court case) and as well the “Felony Battery” and “Resisting Without Violence” charges; however the prosecution still wanted a lesser misdemeanor charge to stand for the “Slapping the Sergeants’ hand”.
Mr. Maita was not available during court for further questions nor was Sergeant Masters. Only the defendant’s attorney and a State prosecutor stood before the court.
It is nice that the prosecution dropped the officer’s charges but the defendant spent a night in jail, forked over $1,100 to a bail bondsman and now has attorney costs. Certainly the memories of a night in jail will haunt the accused for years to come. Might this arrest lead to counter charges against The City of Miami Beach by Mr. Maita?
It appears that West Palm Beach (Freelance journalist arrested after photographing voting lines) also has an officer who already has copied the Miami Beach Sergeants’ dislike of public photography. For this past week a journalist was arrested for taking pictures of voter lines. The charges are different but the act of photographing is the root cause of the charges.
We intend to follow the Miami Beach case story and the West Palm Beach one, to their completions. Stayed tuned to City Debate…
© 2000 – 2004 City Debate Publishing Company, CityDebate.Com
FUROR OVER FURHER COSTUME AT SCHOOL HALLOWEEN
MIAMI BEACH, Florida – A Miami Beach schoolboy caused a stir when he showed up for his school’s Halloween parade dressed up as Adolf Hitler, The Miami Herald reported Saturday.
“Wildly inappropriate,” said lawyer David Edelstein, who reportedly alerted the Anti-Defamation League ( ADL) after seeing the youngster wearing a uniform, swastika patches, a moustache and a name tag that said “A. Hitler.”
The ADL’s southern area director, Art Teitelbaum, told the daily it was “grossly insensitive on the part of any adult who was involved in selecting this costume for an innocent child. Nothing justifies the trivialization of the memories of the Holocaust and the evil of Adolf Hitler”.
The school said the fourth grader was eventually removed from the parade “for safety reasons”.