Economy looking better

The National Association of Home Builders/Wells Fargo monthly housing market index rose three points in August to 59, the strongest reading since November 2005. An index reading above 50 indicates positive sentiment about the housing market.

The combined construction of new single-family homes and apartments in July rose 5.9% to a seasonally adjusted annual rate of 896,000 units. Single-family starts decreased 2.2%. Volatile multifamily starts rose 26%. Compared to the previous year, housing starts were up 20.9% in July. Applications for new building permits, seen as an indicator of future activity, rose 2.7% to an annual rate of 943,000 units.

Total business sales increased 0.2% to $1.285 trillion in June, up 4.9% from a year ago. Total business inventories were unchanged in June at $1.655 trillion, up 3.5% from a year ago. The total business inventories/sales ratio in June was 1.29.

Consumer prices rose 0.2% in July, following a 0.5% increase in June. Compared to July 2012, consumer prices have risen 2%. Consumer prices at the core rate — excluding volatile food and energy prices — were up 0.2% in July.

Initial claims for unemployment benefits for the week ending August 10 fell by 15,000 to 320,000, the lowest level since November 2007. Continuing claims for the week ending August 3 fell by 54,000 to 2.969 million. The less volatile four-week average of claims for unemployment benefits was 332,000.

Information provided by Tyler Bahnsen, Prospect Mortgage.

$688,000 Verdict after Bouncers Fail to Prevent Attack Workplace Negligence.

Article published by Counsel Financial
$688,000 Verdict after Bouncers Fail to Prevent Attack
Workplace Negligence.  

On the evening of October 4, 2009, 21-year-old Plaintiff, Jorge Lopez, was escorted from the back door of Club Space nightclub in Miami, FL following an altercation with three other patrons inside the club. Shortly thereafter, those three other patrons, who had been escorted out the front door of the club, saw and attacked Lopez, injuring his jaw, head and back. Lopez’s jaw was fractured, requiring open reduction internal fixation surgery.

Lopez filed suit against the nightclub, alleging that it provided negligent security and failed to train and supervise its bouncers. At trial, counsel for Plaintiff argued that bouncers were supposed to separate and monitor patrons who had been removed from the club to prevent them from continuing altercations outside.

Video surveillance showed the club’s bouncers pushing Lopez out the back door, and immediately thereafter, one of the three other patrons running up to Lopez and punching him. The video also showed the bouncers watching and laughing while the three men beat Lopez.

Counsel for Defendant denied that the bouncers were negligent and that the nightclub was responsible for Plaintiff’s injuries. Defense counsel argued that its bouncers followed proper procedures in escorting Lopez from the club and they did not foresee that the trio would attack him once outside.

The jury returned a verdict for Lopez in the amount of $688,472, which included $38,472 for past medical costs, $210,000 for past pain and suffering and $440,000 for future pain and suffering.
VERDICT: $688,472
COURT: Miami-Dade County Circuit Court, 11th, FL

Federal Mandatory Minimums Get a Facelift: Alleyne v. United States

Alleyne was charged with using or carrying a firearm in relation to a crime of violence which carries a 5-year mandatory minimum sentence, that increases to a 7-year minimum “if the firearm is brandished,” and to a 10-year minimum “if the firearm is discharged.” 

“In convicting Alleyne, the jury form indicated that he had “[u]sed or carried a firearm during and in relation to a crime of violence,” but not that the firearm was “[b]randished.” When the presentence report recommended a 7-year sentence on the §924(c) count, Alleyne objected, arguing that the verdict form clearly indicated that the jury did not find brandishing beyond a reasonable doubt and that raising his mandatory minimum sentence based on a sentencing judge’s finding of brandishing would violate his Sixth Amendment right to a jury trial. The District Court overruled his objection, relying on this Court’s holding in Harris v. United States, 536 U. S. 545, (In 2002, the Court decided in Harris v. United States that Apprendi (see below) did not apply to facts that would increase a defendant’s mandatory minimum sentence, and therefore that a judge could constitutionally decide to apply a mandatory minimum sentence on the basis of facts not proven to a jury) that judicial fact finding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment. The Fourth Circuit affirmed, agreeing that Alleyne’s objection was foreclosed by Harris.”

The Court in a five-to-four decision by Justice Thomas (joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan), held (on June 17, 2013) “that the defendant’s seven-year mandatory minimum sentence violated his Sixth Amendment right to trial by jury because the question of brandishing was never submitted to the jury.  The Court’s opinion explains that the logic of Apprendi (Apprendi v. New Jersey stands for the fact that any facts which increase a criminal defendant’s maximum possible sentence are considered “elements” of the criminal offense that must be proved to a jury beyond a reasonable doubt) requires a jury to find all facts that fix the penalty range of a crime.  According to the Court, the mandatory minimum is just as important to the statutory range as is the statutory maximum.  The Court made clear that its holding was not designed to limit the discretion of the trial judge in imposing sentences within the range defined by the statutory maximum and mandatory minimum.  The Court therefore vacated Alleyne’s sentence and remanded the case for resentencing in line with the jury’s verdict.” See ScotusBlog for full cite.

What does this mean to you and me?  It means that the Court finally recognized that all of the evidence of a crime must be presented to the jury in order that the judge consider the same in the sentencing phase (if you are found guilty that is).  If you believe that you are facing an illegal sentence, contact a criminal defenses attorney.

FEDERAL SENTENCING ARTICLE

FEDERAL SENTENCING ARTICLE

When the Federal Court sentences a defendant to a term of imprisonment, the Probation Officer in charge of completing the Presentence Investigation Report may recommend to the bureau of prisons that the defendant be placed in a residential substance abuse program for those who qualify (18 U.S.C. Sect. 3621(e)).

Pursuant to the bureau of prisons program statement (P.S. 5331-02), those serving 37 months or more may be eligible for a sentence reduction up to 12 months; those serving between 31 and 36 months may receive a reduction of up to 9 months; and those serving less than 31 months may be eligible for a reduction of up to 6 months for participation.

As such, review carefully the bureau of prisons program statement (P.S. 5331-02) and determine whether you may be eligible. For example, those with prior convictions of homicide, rape, robbery, aggregated assault, arson, kidnapping or an offense which involves sexual abuse of a minor may not be eligible.

For further information regarding P.S. 5331-02 and how it may affect your case and/or sentencing please call us at 305-443-7005 for a free initial consultation.

FOURTH AMENDMENT (SEIZURE OF PERSONS) ARTICLE

FOURTH AMENDMENT (SEIZURE OF PERSONS) ARTICLE
"Is it unreasonable for an officer to stop me on the street and request to search my luggage or person absent probable cause?"
That depends:
The US Supreme Court has recognized three categories of law enforcement encounters with individuals:
1.) 'casual encounters'
2.) 'temporary detentions' and
3.) 'arrests'
The first type of encounter, a 'casual encounter' has been held NOT to be a seizure of your person and therefore, any information obtained by law enforcement during this 'casual encounter' can be used against you!
The Court has stated that a casual encounter is one where the individual is free to terminate the encounter at any time and without repercussion.
The Supreme Court went on to explain in US v. Drayton that "law enforcement officers do NOT (emphasis added) violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are WILLING TO LISTEN (emphasis added)... Even when law enforcement officers have no basis for suspecting a particular individual, they may POSE QUESTIONS, ASK FOR IDENTIFICATION, AND REQUEST CONSENT TO SEARCH LUGGAGE (emphasis added) -- provided they do not induce cooperation by coercive means... If a reasonable person would feel free to terminate the encounter, then he or she has not been seized."
Now, what the Court is saying here is that a police officer may initiate conversation with you or I just as any other 'normal' individual and in spite of our programming to the contrary (to give deference and respect to officers of the law) we may "terminate" or ignore the officer and end the conversation absent ramifications.
Clearly (given the above opinion) no member of the Supreme Court has ever had a run-in with the law. No 'reasonable person' would possibly feel free to unilaterally terminate a conversation with a law enforcement officer. This 2002 Supreme Court decision is the unfortunate state of the law.
As such, so long as you are 'free to leave' there is no detention and therefore no Fourth Amendment violations regarding a seizure of a person should an officer of the law stop you in the street to 'chit chat.'
In closing - if you are randomly stopped by an officer while walking around town and do not wish to partake in their conversation, remember: you don't have to talk back. Ask them if you are free to go and if so, end the conversation at that.  For further information regarding seizure of your person by a law enforcement officer please call us at 305-443-7005 for a free initial consultation.