Federal Money Laundering

The pattern jury instruction for the 11th Circuit (Miami) requires intent to lauder. Below is the exact instruction and some notes. If you are charged with Money Laundering get advice from an experienced lawyer.
Money Laundering:
Promoting Unlawful Activity
18 U.S.C. § 1956(a)(1)(A)(i)
It’s a Federal crime to knowingly engage in certain kinds of financial transactions commonly known as money laundering.
The Defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt:
(1) the Defendant knowingly conducted or tried to conduct, a financial transaction;
(2) the Defendant knew that the money or property involved in the transaction were the proceeds of some kind of unlawful activity;
(3) the money or property did come from an unlawful activity, specifically [describe the specified unlawful activity alleged in
the indictment]; and
(4) the Defendant was involved in the financial transaction with the intent to promote the carrying on of that specified unlawful activity.
To “conduct a transaction” means to start or finish a transaction, or to participate in a transaction at any point.
A “transaction” means a purchase, sale, loan, promise, gift, transfer, delivery, or other disposition of money or property.
[A transaction with a financial institution also includes a deposit, withdrawal, transfer between accounts,
exchange of currency, loan, extension of credit, use of a safe deposit box, or purchase or sale of any stock, bond, certificate of deposit, or other monetary instrument.]
A “financial transaction” means –
[a transaction that in any way or to any degree affects interstate or foreign commerce by sending or moving money by wire or other means.]
[a transaction that in any way or to any degree affects interstate or foreign commerce by involving one or more “monetary instruments.” The phrase “monetary instruments” includes coins or currency of any country, travelers or personal checks, bank checks or money orders, or investment securities or negotiable instruments in a form that allows ownership to transfer on delivery.]
[a transaction that in any way or to any degree affects interstate or foreign commerce by involving the transfer of title to any real property, vehicle, vessel, or aircraft.]
[a transaction involving the use of a financial institution that is involved in interstate or foreign commerce, or whose activities affect interstate or foreign commerce, in any way or degree. The phrase “financial institution: includes [give appropriate reference from 31 U.S.C. § 5312(a)(2) or the regulations promulgated under it]].
“Interstate or foreign commerce” means trade and other business activity between people or businesses in at least two states or between people or businesses in the United States and people or businesses outside the United States.
To “know that the money or property involved in the transaction came from some kind of unlawful activity” is to know that the money or property came from an activity that’s a felony under state, federal, or foreign law.
The term “proceeds” means any property derived from or obtained or retained, directly or indirectly, through some form of unlawful activity, including the gross receipts of the activity.
The term “specified unlawful activity” means [describe the specified unlawful activity listed in subsection (c)(7) of the statute and alleged in the indictment].
The term “with the intent to promote the carrying on of specified unlawful activity” means that the Defendant must have [conducted] [attempted to conduct] the financial transaction for the purpose of making easier or helping to bring about the “specified unlawful activity” as just defined.

18 U.S.C. § 1956(a)(1) provides:
Whoever, knowing that the property involved in a financial transaction represents the proceeds of some form of unlawful activity, conducts or attempts to conduct such a financial transaction which in fact involves the proceeds of specified unlawful activity – –
(A)(i) with the intent to promote the carrying on of specified unlawful
activity [shall be guilty of an offense against the United States]. Maximum Penalty: Twenty (20) years imprisonment and applicable fine. In United States v. Cancelliere, 69 F.3d 1116 (11th Cir. 1995), the Court held that although proof of willfulness is not a statutory element of money laundering, where the indictment expressly charged willfulness, the District Court erred in not giving the usual instruction on willfulness (Basic Instruction 9.1A).
The term “proceeds” in 18 U.S.C. § 1956 was expressly defined by the Fraud Enforcement and Recovery Act of 2009 (“FERA”), Pub. L. No. 111-21, effective May 20, 2009. The FERA expanded the concept of monetary proceeds, for purposes of enforcing prohibitions against money laundering, to include gross receipts. See 18 U.S.C. § 1956(c)(9).
The FERA was a direct response to United States v. Santos, 128 S. Ct. 2020 (2008). In
Santos, a plurality of the U.S. Supreme Court held that the definition of the term “proceeds” in 18 U.S.C. § 1956(a)(1)(A)(i) refers to “profits” rather than “receipts” when applied to a prosecution arising from an illegal stand-alone gambling operation. Until the FERA, the definition of “proceeds” in the money laundering statute remained unclear. The Eleventh Circuit has construed the fragmented Santos opinion narrowly. In United States v. Demarest, 570 F.3d 1232 (11th Cir. 2009), a case in which the trial took place prior to the FERA’s enactment, the Court noted:
Santos has limited precedential value… The narrow holding in [the case], at most, was that the gross receipts of an unlicensed gambling operation were not ‘proceeds’ undersection 1956…Id. at 1242.

Source: Miami Herald

Marijuana Possession is Hardly a Crime Anymore, but Since It’s the Cops Choice You Can Still Be Charged


Miami-Dade County has passed an ordinance that gives police officers the option of issuing a $100 citation (like a parking ticket) for small amounts of marijuana possession.  As long as you possess less than 20 grams (about 36 joints depending on the size) you could have the bitter sweet luck of getting a ticket for $100 instead of a criminal charge.  The thinking is that it can save a lot of kids from getting rap sheets and the also free up police to focus on more serious crimes.

But depending on the officer’s mood (and most likely what you do to influence the officer’s mood being respectful vs. being disrespectful) will likely determine if you get the citation vs. getting arrested.  The law on the books says that possession is a first-degree misdemeanor which means the charge carries a maximum one-year in jail and up to a $1000 fine.  Also, if you are convicted (and only 2% of people are) you could lose your license for two years.

Marijuana laws may be becoming a little less harsh but are still serious if you have prior offenses in your criminal record, possess at or near schools, or sell it.  If you know someone that has been charged, it’s a good idea to call an experienced criminal lawyer right away.

Sexual Assault & What You Can Do About It

Weinstein, Sheen, Franken, and now Charile Rose. Treating women right is a hot topic in the news. Ever wonder why Bill Cosby is facing criminal charges others end up paying settlements?

I’ve won cases involving rape and child molestation in both civil and criminal courts and during university investigations. Sexual assault is as serious as it sounds. First, there is a horrible accusation. Next, it needs to be verified or somehow corroborated. Then with the evidence available, a criminal case may be put together if the facts can convince a jury beyond a reasonable doubt. If memories fade or there isn’t enough evidence to convince a jury that consent was lacking, then all that may be left is a civil suit to try and recover something from someone that contributed to the assault. Just because the evidence doesn’t support a criminal case doesn’t mean the victim is out of options.

First and foremost, sexual assault in Florida is known as “Sexual Battery” and/or “Lewd or Lascivious Battery”. The crime is characterized by the degree of the touching- exactly what touched what and how exactly if there was penetration. The offense is further characterized by the victim. Was she (or he) under 12 or over 65. Was the victim forced or unaware? Was a weapon involved? Did the act cause great bodily harm or pain, permanent disability, or permanent disfigurement?

Sexual battery requires that the accused (1) penetrated or has contact with the sexual organ of the victim (including the anus) or mouth of the victim, (2) without the victim’s consent. Lewd and Lascivious Battery is pretty much the same as sexual battery but consent isn’t the issue, the age of the victim is.
An important distinction is that the age of consent is technically 18 in Florida. However, if two teenagers engage in consensual intercourse, so long as one is 16 years-old or older and the other is 24 or younger then they should be protected by the State’s Romeo and Juliet Law (Fla. Stat. 794.05).

What exactly is “consent”?  It’s defined as an “intelligent, knowing, and voluntary consent and does not include coerced submission”. Consent does not mean the failure of the victim to offer physical resistance to the offense either.

The criminal case hinges on the state’s ability to prove the elements of touching and a lack of consent for a sexual battery beyond and to the exclusion of a reasonable doubt. For a lewd and lascivious, the state needs to prove the touching and that the act occurred when the parties were within the necessary age ranges beyond a reasonable doubt.
With most of the cases making news today involving the celebrities in Hollywood, reporters, and politicians its very likely that the time allowed to bring the suit has passed or there isn’t sufficient evidence to corroborate the allegation. Assuming there’s still time to bring charges (and there are a lot of factors to determine if a criminal case can be brought beyond the usual time-limits) then the next issue goes to corroboration to enhance the believability of the accusation. Did the victim mention the attack to someone shortly after it happened? Or is the report delayed by weeks, months, or years? The more time passes the more a jury is going to wonder what took so long to speak up. Memories fade, “the when, where, -why, who-else-saw-something” all get harder to prove with the certainty required.

In addition to the testimony as evidence, what about fluid samples, hair collections, evidence of struggle like blood, scars, bruising, the perpetrators skin under nails, broken bones, and the location where the struggle took place to corroborate the allegation, etc? All that evidence helps a jury know that they are making the right decision. If they don’t have it, the jury is left to wonder why.

Assuming there is a party that bears some responsibility for the assault, and that party (or those parties) have the ability to compensate the victim, it may be possible to get a money judgment against them. In a civil lawsuit, the victim doesn’t have to prove the attack beyond a reasonable doubt. A jury only needs to be convinced that it is more likely than not that it happened. If a condominium complex allowed someone on the property that they should have known was a threat, or even a nursing home, school, after-school activity, employer, etc., the organization could be a contributing cause to the battery.
Maybe they failed to provide adequate security, hired without doing the necessary background or supervision, or didn’t supervise the staff that was doing thing they should have been able to prevent. All of those things could be negligence if whatever they did or didn’t do wasn’t reasonable. If a jury agrees, it could be a big judgment to compensate for the sexual assault.

Every case is different and speaking to a lawyer who has successfully won in both criminal and civil court is a good place to start to see if you have a claim.

Nothing contained herein should be considered formal legal advice or the formation of the attorney-client relationship. Call us for more information or to schedule an appointment. 305-665-3978.

You Don’t Need A Florida License, unless…

My phone has been ringing off the hook with people that have been charged for not having a Florida Driver’s License. It seems that police are mistakenly charging people with the criminal offense even when they don’t need a license.

If you are visiting Florida from another state or from another country your driver’s license issued out-of-state (or in the other country) will work just fine to allow you to drive here.

However, Florida requires that you get a Florida Driver’s License if you work in Florida or have kids enrolled in school here. If you are married to someone who works here or who has children enrolled in school here, you will need one too.

Florida Law allows thirty days from the start of work or from when they enrolled their kids in school to get licensed.

If you are charged and get a Florida License, then the State generally dismisses the charge because of your compliance. If you go back to your out-of-state/ country home and don’t come to court, you will probably get a warrant and could be arrested next time you come to Florida or possibly in any state.

Failure to have a Florida License when required is a second degree misdemeanor punishable by up to 60 days in the county jail and up to a $500 fine.

If you hire an attorney, it is possible to resolve the matter and explain that you aren’t required to have a Florida Driver’s License. If you have been wrongfully charged, call us, 305-665-3978.

I’ve included Florida statute 322.031 for your reference.

Flat Rate Evictions

We offer flat-rate eviction services for landlords that needed to start their evictions yesterday. The process of eviction takes attention to detail and needs to be done right or risk being fined for a wrongful eviction.

For our reasonable flat-rate attorney’s fee of $300 we start the process by sending the required three-day notice. If the tenant isn’t out or doesn’t pay within the three-days, we charge the second  $300 attorney fee and then we file the complaint and serve it with our private process servers. Generally, our process servers get the complaints served within 24 hours.  (Filing fees, process server fees, and postage usually costs about $200 and are billed separately.)

From there, the tenants have five days to move, pay, or we get the court order to force them out with the sheriff. Get started now before they owe you another day of unpaid rent!

Call today 305-665-3978.

*Amounts don’t reflect court filing fees, process server fees, and other associated costs. The typical eviction costs between $500-$750 with costs. Amounts discussed herein relate to actions for possession only. Pursuit of unpaid rent, after obtaining possession, is optional and may be performed on an hourly or contingency basis. Nothing contained herein should be considered legal advice and does not form the basis for an attorney-client relationship. Call today to inquire.

Threat against cop on Periscope app leads to arrest of West Kendall teen

A West Kendall teen has been arrested after authorities say he threatened to kill a Miami-Dade cop while chatting on the increasingly popular web broadcast service Periscope.

Jean-Michael Montenegro, 19, was charged this week with cyber stalking and written threats. He appeared in court Tuesday and was later released from jail on a $6,000 bond.

Periscope, an offshoot of the social-media app Twitter, allows users to broadcast live using their smart phones or tablets. Viewers can then chime in on a real-time chat that appears on the screen.

On April 8, a Miami-Dade police sergeant was being interviewed on a “department-sanctioned” broadcast from Goulds Park about recruiting future officers.

Detectives say Montenegro — with the user name “jeanmon600” — entered the Periscope chat and wrote “I’ll kill u sergeant.”

The sergeant, whose name was not released, said “he was in fear for his life and has since altered his living patterns,” Miami-Dade Detective Roy Rutland, of the Homeland Security Bureau, wrote in an arrest report.

Investigators scoured social media and identified Montenegro, who blurted out “I didn’t mean to threaten that guy!” when he was confronted, police said. Montenegro eventually confessed he was behind the threat, police said.

His defense lawyer, Matthew Ladd, said on Tuesday that Montenegro is innocent.

“The allegations do not support that any crime has been committed. We have entered a plea of not guilty and are investigating the allegations to determine why exactly the arresting officer decided to arrest Jean,” Ladd said.

Crimes involving social media — Facebook, Instagram and Twitter among others — have increased as the programs have become ingrained in daily habits.

Periscope, which is owned by Twitter, launched in March 2015. As its use has increased, so too have incidents involving the live-streaming app. In one particularly troubling case, an Ohio teen girl stands accused of live-streaming her friend’s rape. She was recently charged in connection with the attack and this week pleaded not guilty.

Last fall, a Lakeland woman was charged with DUI after she used Periscope to live-stream herself driving home while drunk.

Read more here: http://www.miamiherald.com/news/local/crime/article72674737.html#storylink=cpy

Fighting Over Fighting with Stalking Injunctions and Injunctions for Protection from Domestic, Dating, or Repeat Violence

It’s an all too common scenario. Neighbors or a couple get mad at each other. They fight. The cops are called. They don’t know who to arrest. Sometimes they arrest everyone involved. Sometimes they arrest just one person. Sometimes they don’t arrest anyone. In almost every case, the police will advise the parties that they have the option of pursuing an injunction for protection.

Injunctions for protection are civil judgments that give the police the ability to arrest the target if they violate any one of the many terms specified, including coming within 100 feet of the person that the injunction is supposed to protect. Injunctions are generally imposed on a temporary basis if a judge determines that the allegations warrant the immediate protection. A hearing is held after notice is given to the person who is the alleged aggressor after about a month. Evidence from both parties is allowed and a judge will decide the outcome. A judge can order that the injunction should stay in place for a few months, forever, or not impose it at all and dismiss the case. An important consideration is to decide if the allegations are being pursed by DCF or the State Attorney. Defending the injunction could jeopardize your standing in future cases.

Injunctions can be an effective tool in domestic cases to keep hot tempers from further boiling over into additional domestic violence incidents by keeping the parties at a safe distance. They also help get the State Attorney and DCF involved.

However, when it comes to neighbors, it gets a little trickier. It is unlikely that a judge would force someone to move out of their home in a non-domestic violence case. The more reasonable approach is for a judge to impose a smaller zone of restriction between the parties and to advise the aggressor to stay as far away from the other person as they can.

I’ve recently handled a few cases where the people seeking the injunction made really outrageous allegations. Fortunately, we won and the judge agreed with my clients and determined that there wasn’t a sound basis to impose the restrictions.

The take-away: steer clear of problem neighbors, and even sometimes that won’t be enough. Rather than subject yourself to the potential violations that can get charged as crimes, fight it! You can’t win it if you aren’t willing to fight it!

For an aggressive defense of civil stalking or domestic violence injunctions, call Matthew E. Ladd at 305-665-3978.

Nothing contained herein should be construed as formal legal advice or the formation of an attorney-client relationship. Consult an attorney if you are faced with the issues discussed herein.

Navigating the Federal Sentencing Guidelines

Crimes charged in Federal Court are subject to the onerous Federal Sentencing Guidelines.  Each crime is designated with an offense level that determines how many years in prison are in play for a minimal sentence.  Recent precedent gives the sentencing judge wide discretion in determining how much time should be served even when there are minimum mandatory sentences involved.

Crimes charged in Federal Court are subject to the onerous Federal Sentencing Guidelines.  Each crime is designated with an offense level that determines how many years in prison are in play for a minimal sentence.  Recent precedent gives the sentencing judge wide discretion in determining how much time should be served even when there are minimum mandatory sentences involved. 

In addition to the base offense level, there are factors that could increase or even decrease the guideline sentencing suggestion.  For example, if a gun was used or if someone was seriously injured, a typical drug case could be enhanced with a higher offense level.  The range of things that can increase a base offense level can be something as simple as obstructing the investigation to the fact that a private plane was used to import drugs. 

It’s also possible to decrease the offense level by doing anything from writing a letter of apology and taking responsibility for the offense, to showing that the role played in the offense was “minor” or even “minimal” in relation to the entire offense and the role played by others.  Someone who did not plan or orchestrate the crime should work for a reduction relative to the organizer.       

It’s also really important to know what kind of charge to accept before the plea agreement.  Accepting a charge like “importation” of drugs rather than to “conspiracy to import” may preclude the availability of arguing for mitigating role reductions.  The simple reason being is that if the offense charged is importation, and the person charged carried the drugs into the country, it is a lot harder to say he only had a minor role in the importation.   

However, if the offense is “conspiracy to import”, and the role was carrying the drugs into the country, the ability to argue that the importation was simply a minor or minimal part in relation to the entire conspiracy and relative to the role of others involved, it could shave off a few years of prison.   

Figuring out what is available and what is actually worth pursuing takes an experienced attorney to navigate through the Federal Code.  It seems overwhelming when faced with minimum mandatory sentences and maximum life sentences, but oftentimes, something can done to help reduce the total amount of prison time before sentencing. 

For more information on how to shave years off a sentence prior to sentencing call Coral Gables Federal Criminal Attorney Matthew E. Ladd for a free consultation, 305-665-3978.    



Juveniles Need to Act Fast to Avoid Being Charged As Adults

The State Attorney has the discretion to charge certain juveniles as adults. Defending juveniles requires a certain understanding of the options available. Usually, keeping the crime in juvenile court means the resolution or sentence will be more focused on therapy and rehabilitation rather than punishment.

Convincing the prosecutor that the case should stay in juvenile court instead of adult court requires acting fast to complete psychological evaluations, lie detector exams, and providing school records. The benefits of keeping the case in juvenile court include that the records will remain sealed (so there won’t be an adult criminal history), and a much lower exposure to confinement.

There are also programs that are available in juvenile court that aren’t available in adult court. Two such programs result in the charges being completely dropped after about a year if all the sentencing conditions are successfully completed.

Guaranteed dismissals are a lot better than being charged as an adult. Acting fast can make all the difference. If you or someone you know has been arrested and is a juvenile and want to try and keep their case in juvenile court, call Matthew Ladd, Esq., for a free consultation, 305-665-3978.


On September 25, 2015 Judge Leifman ruled that the way red light camera tickets were issued in Miami-Dade County was illegal. It’s important to note that the City of Miami and other agencies have fixed what was wrong. It is their position that they are issuing the violations correctly. If you choose not to pay the $158 violation notice it will become a citation for $277 that you will either have to pay or set for court and then try and fight. If you hire an attorney, you are likely to pay the attorney fee of around $85 plus the $277 fine if the judge thinks the ticket is legit. I generally recommend paying the violation notice at $158 because you guarantee the dismissal and won’t have to worry about hiring a lawyer and paying even more on fines.

The Leifman order turns on the issue that a private vendor unlawfully screens the images and sends the ones that it thinks should be violations to the police to issue the tickets.

The Fourth District ruled that it was unlawful for the private vender to have such “unfettered discretion” and Judge Leifman, the Miami-Dade judge in charge of traffic infractions, determined the process at issue in his case was the same as in Broward, and therefore he was bound to dismiss the citation.

A few years ago I took a similar issue involving the fact that personal service is required for tickets all the way to the Court of Appeals. That fight lead to MDX eventually changing its process of issuing tickets and suspending drivers’ licenses.

I am sure that the private vendor and the agencies making millions off of these tickets will work to fix their process to comply with the law, but until then, it looks like anyone who paid these tickets is going to get a letter very soon informing them that they are entitled to a refund.

The moral of the story: NEVER BACK DOWN. This is an important win for everyone that has been charged with a Red Light Violation. Class Actions have already started in Broward and are sure to follow in Miami-Dade. Make sure the address on your license is up to date so that the refunds can find you.

Read Judge Leifman’s Opinion Below:

THIS CAUSE came on to be heard on the Defendant’s Motion to dismiss the above styled citation. The Court held an evidentiary hearing on June 15, 2015, considered the written closing arguments submitted by the Defense and the City of Aventura and the Attorney General’s Motion to Certify Questions, the case law, and being otherwise fully advised in the premises, finds:
Pursuant to §316.0083, Fla. Stat., the Defendant was issued a Notice of Violation (NOV) for failure to stop at a red light as required by law which was detected by a red light camera located in the City of Aventura (City). The Defendant did not respond to any of the options afforded by the statute and a Uniform Traffic Citation (UTC) was issued for the infraction. The Defendant filed a motion to dismiss the UTC making three arguments. First, the City impermissibly delegated its police power to its vendor American Traffic Solutions (ATS) by allowing the pre-screening of red light camera data before sending it to the City for review.
Second, the City delegated to ATS the task of transmitting the UTC to the Clerk in violation of §316.650(3)(c). Finally, this Court is bound by the Fourth District Court of Appeal’s opinion in
Hollywood v. Arem, 154 So. 3d 359 (Fla. 4th DCA 2014) to dismiss the UTC because the procedures utilized by the City are analogous to those found to be an improper delegation of police powers. The City and the Attorney General argue that the Defendant’s reliance on Arem is misplaced because the procedures employed by the City do not give ATS the “unfettered discretion” found to be impermissible by Arem.
At the evidentiary hearing the Defendant called no witnesses; instead he relied solely on the record from the Arem case as binding authority. The Defense argues because the contractual provisions between the City and ATS in this case are identical to the contractual provisions considered in the Arem decision that this Court has no discretion to disagree with the decision. Additionally, the Defense submitted contracts and orders from Davie, Fort Lauderdale and Boynton Beach as persuasive authority.
The City and the Attorney General argue the Defendant failed to meet his burden of proof because he failed to show that there was some illegal delegation of powers. The Court determined that evidence was necessary to show whether the procedures employed by the City are the same as those found impermissible by Arem. The City called Sergeant Jeff Burns and Officer Jeanette Castro of the City of Aventura’s Police Department, two ATS employees Debbie Duff and Stephanie Lord, and Sonny Thomas from the Miami-Dade County Clerk’s Office to establish the procedures followed by City and ATS in this case.
The City first entered into a contract with ATS in 2008 to provide red light cameras and software data based services when the City began to enforce red light violations via the use of
cameras pursuant to a City Ordinance. One of the services provided by ATS in the contract was to review the images captured by the red light cameras to determine which images should be sent to the City police and which images should not be sent. The 2008 contract in Exhibit D, Paragraph 3 states:
The vendor shall make the initial determination that the image meets the requirements of the Ordinance and this Agreement, and is otherwise sufficient to enable the City of meet its burden of demonstrating a violation of the Ordinance. If the Vendor determines that the standards are not met, the image shall not be processed any further.
After Florida Statute §316.0083 was enacted in 2010, the City made amendments to its contract with ATS that were deemed necessary to comply with the statute. To reflect the review allowed by the statute, Exhibit D, Paragraph 3 was amended and now reads:
Vendor shall act as City’s agent for the limited purpose of making an initial determination of whether the recorded images should be forwarded to an authorized employee to determine whether an infraction has occurred and shall not forward for processing those recorded images that clearly fail to establish the occurrence of an infraction.
The procedure used to provide this review process involves ATS looking at the images collected by the red light cameras. These images include two still photographs, referred to as the A-Shot and B-Shot, along with a twelve (12) second video clip. These images are sorted into two groups; those to be forwarded to the City’s police for determination whether a violation has occurred and those the City’s police have determined they do not want forwarded. Of the thousands of red light camera images captured each month, the City’s police review approximately 5,000 for potential violations. ATS does not forward several thousand images each month. The police save time by having ATS sort out those images the police do not want forwarded. Sergeant Burns testified the police would be overwhelmed reviewing potential violations if they had to view every image captured by the cameras.
In order for ATS’s review and sorting to take place the City provided ATS with detailed directives through a document entitled Business Rules Questionnaire (BRQ). The BRQ, in sections 4 and 6, contains a series of questions and scenarios by which the City dictates to ATS which images to forward to the police for their determination if probable cause exists that a violation has occurred and those not to forward because the police have determined they would not approve it as a violation. The directives are fairly straight forward and call for the majority of the images to be forwarded. Section 4 of the BRQ defines the criteria the City’s police have established for forwarding a possible red light violation. The BRQ requires ATS to forward all images on straight through and left turns when the A-Shot shows the vehicle’s front tires are behind the stop line and the B-Shot shows the entire vehicle has crossed the stop line while the light is red. The police have provided an exemption to the B-Shot requirement that the entire vehicle crosses the stop line for trucks pulling trailers unless the video supports the violation. Sergeant Burns explained, due to the length of these vehicles, the truck in B-Shot may appear to be over the stop line, but has actually stopped with the trailer still behind the stop line which requires looking at the video to see if it continues through the intersection without stopping. This section requires when the A-Shot shows the front tires are on or slightly over the line the images must be forwarded if the video, which begins before the A-Shot is taken, shows the tires were behind the stop line when the light turned red. Regarding right turns on red, if the vehicle did not make a full and complete stop, but slow-rolls through the turn and the indicated speed is less than fifteen (15) miles per hour, the directive is not to forward. This is because the statute only requires the turn be made in a careful and prudent manner and the City’s police have determined they will not prosecute on vehicles going under that threshold speed. The City has provided a list of intersections with posted no right turn on red signs and all turns made on a red
light at those locations are to be forwarded. Additionally, Section 4 contains directives to forward in situations where a LED traffic light is showing all lights unlit or incandescent bulb traffic light is showing red lit with yellow fading. Section 6 directs an image of any emergency vehicle going through a red light with its emergency lights activated is not to be forwarded. However, if the emergency lights are not activated the image must be forwarded. Images of any government vehicle belonging to the City or any neighboring city going through a red light must be forwarded. Vehicle’s plates that do not match the make or model returned from DVM or those with handicapped plates are required to be forwarded. An additional situation where the images are not forwarded is when the plates are unreadable.
The review and sorting conducted by ATS is done by trained processors who have two computer screens in front of them. They look at the images captured by the red light cameras on one screen then review the images against the City’s BRQ on the second screen. The images meeting the City’s BRQ requirements to forward to the police are placed in a working queue. The images that the BRQ requires not to forward are placed in a non-working queue. Both of these queues are contained within the same database and each queue is available for police review. The goal of ATS is to accurately process the images according to the City’s BRQ. Once the processor places the images into the City’s respective queues there is no further human involvement by ATS. The police also have access to a report screen that provides the number of images in the non-working queue and the reasons for not forwarding each image. Sergeant Burns stated he does review this report.
The ATS processors receive extensive training prior to being certified to process the images. This training begins with one week of classroom instruction on the computer system, steps needed to process images, and how to work with a BRQ. An eight week training period
follows where a one-on-one coach works with each trainee to make sure they are following the BRQ. Daily, the coach quality checks the trainee’s work for accuracy, and a formal audit of 100% of each trainee’s work is conducted. Trainees are instructed that the most important principle is if they have any doubt or if the images show something not covered by the BRQ, then the images must be forwarded to the police. Upon successful completion of training the processors are certified. All certified processors have a random percentage of their work audited weekly which receives a performance score used as part of their yearly performance review. Any processor whose weekly score falls below 90% is sent for retraining. If performance standards are still not met counseling and further training is given. Processors who still do not achieve the minimum required score are terminated.
To access the database containing the City’s working queue, a police officer assigned to red light camera enforcement must log on to the server with their own unique user ID and password. The officer then reviews the images for each potential violation to make a determination whether there is probable cause to believe that an infraction has occurred. The officer uses the same decision making process in determine whether an infraction has occurred when viewing the red light camera images as would be used when issuing an infraction roadside. Of the images reviewed by the City’s police officers, only between sixty-five percent (65%) and seventy percent (70%) are approved as a violation. If the officer determines an infraction has occurred, the officer selects the “accept” button. By selecting “accept” the officer authorizes the issuance of the NOV and the placement of his/her electronic signature and badge number on the NOV. At the same time, the officer also authorizes his/her signature to be placed on a UTC if no action is taken on the NOV during the statutory time allowed. Although the officer never sees the completed NOV or the UTC, all of the information required to be contained on both of these
documents is contained within the images and data reviewed by the officer when determining whether an infraction has been committed. When the officer selects the “accept” button to begin the prosecution of a red light camera infraction, all further statutory steps from creation and printing of the NOV and UTC, their mailing, and the transmitting of the UTC data to the Clerk is an entirely automated process generated according to the instructions contained in the City’s BRQ without any decision making or input from ATS.
Mr. Thomas, who is employed by the Miami-Dade County Clerk of the Court in the Technical Services Division, testified about the technical workings for acceptance of both electronic citations (E-citations) and red light camera E-citations. In 2004, the Clerk began accepting E-citations. At present, approximately forty (40) law enforcement agencies file their citations electronically. When a city’s police officer issues a citation roadside, the E-citation information is first transmitted electronically from the officer’s laptop or handheld device to that agency’s server which then transfers the data to the Clerk of Court. Mr. Thomas explained that there are a number of requirements which must be complied with prior to acceptance of any E-citation. A document entitled Interface Control contains all the terms, conditions, and requirements, as dictated by the State, which must be complied with by any agency before approval is given to file E-citations. In 2010, police departments began asking the Clerk to receive red light camera E-citations on their behalf directly from their vendor’s server. The vendor had to comply with all the same requirements contained in the Interface Control before being issued a user ID and password to transmit the E-citations. While red light camera E-citations transmissions are activated and come from the vendor’s server, everything else is the same as E-citations coming from a police server. In addition, there is a list of E-citation vendors approved by the State of Florida which includes ATS. The City’s BRQ specifies that ATS is to
provide the UTC data to the Clerk electronically. This is done at the same time the UTC is generated. The UTC data received by the Clerk is totally automated with no human involvement based on the police officer’s affirmative selection of the “accept” button after making the probable cause determination. .
The trial court in Arem dismissed the red light camera citation finding that Hollywood’s procedure was contrary to §316.0083(1)(a) and §316.650(3)(c). The only testimony presented in Arem at trial was by the traffic infraction enforcement officer (TIEO) who reviewed the images forwarded by their vendor ATS (the same vendor as in the case before this Court) and hit the “accept” button to generate the NOV. The TIEO had no further involvement with the process. Based on this testimony, the trial court ruled the subsequent UTC was issued by ATS rather than the TIEO as required by §316.0083. The testimony also showed that the TIEO believed ATS was communicating with the Clerk after the UTC was issued, but had no personal knowledge of what information was sent or when it was sent. The trial court further ruled the TIEO did not personally provide electronically transmitted UTC data to the court, but allowed that task to be delegated to ATS in violation of §316.650(3)(c). At a motion for rehearing, Hollywood attempted to present evidence of the actual procedures used in generating and transmitting the UTC by calling a representative of ATS. The trial court did not allow testimony, ruling the evidence was not relevant.
The trial court certified the following three questions of great public importance to the Fourth District Court of Appeal for consideration.
1. Does Florida Statute 316.0083 (1)(a) authorize a municipality to delegate and have a private vendor actually issue Florida Uniform Traffic Citations, when notices of violation (also issued by the vendor), are not complied with, where the only involvement of the traffic infraction enforcement officer in the entire process
is to push a button saying “Accept” after having viewed the image of an alleged violation electronically transmitted by the vendor?
2. Does Florida Statute 316.650(3)(c) permit a traffic infraction enforcement officer to delegate to a non-governmental entity, such as a private vendor of a municipality, his or her statutory duty to electronically transmit a replica of traffic citation data to a court having jurisdiction over the alleged offense or its traffic violations bureau?
3. And if the answer is in the negative to either question, is dismissal the appropriate remedy?
The Fourth District answered the first question in the negative finding “the City is not authorized to delegate police power by entering into a contract that allows a private vendor to screen data and decide whether a violation has occurred before sending that data to a traffic infraction enforcement officer (“TIEO”) to use as the basis for authorizing a citation.” While acknowledging the delegation of the review of the images is authorized by §316.0083, the Fourth District stated the statute does not authorize a vendor to issue citations as “only law enforcement officers and traffic enforcement officers are entitled to determine who gets prosecuted for red light violations.” The Fourth District found that process set forth in Exhibit D of the contract “requires ATS to send images and information regarding the violation to the TIEO only if ATS determines in its sole discretion that certain standards have been met and ATS may withhold sending information if it determines that those standards were not met.” The Fourth District concluded that this contract provision allowed ATS to use unfettered discretion to decide which images to send to the police and which not to send. Additionally, they believed that for all practical purposes it was ATS who initially determined who is subject to prosecution because ATS “controls what information is, or is not, made available for the officer’s consideration.” As a result, the Fourth District found the process set forth in the contract did not comply with
statutory requirements, therefore, the citation was issued without authority and dismissal was the proper remedy. The second certified question was not addressed.
The question is whether the contract and the procedures used in this case are the same as those in place in Hollywood which Arem found to be per se contrary to the statute. The contract between the City and ATS here is the same as between Hollywood and ATS. The basic procedure here is the same as found by the trial court in Arem. ATS performs an initial review of the images to be forwarded to the officer who accepts those found to be a violation. The parties agreed that Hollywood had a BRQ similar to the BRQ in this case and ATS processed it in the same manner as testified to here. The UTC is generated in the same manner as it was in the Arem case. However, the record in Arem shows, and the parties agree, that no evidence was presented to the trial court below regarding how the actual process worked. Additionally, because the initial review procedures were not at issue until the second Arem opinion was issued, no evidence regarding the existence of a BRQ and its implementation was ever submitted.
In Arem, the Fourth District in answering “No” to the first certified question made two basic findings: 1) only law enforcement officers are authorized to issue a UTC and a city may not delegate to a vendor the ability to issue the UTC, and 2) the law does not allow a city to outsource the ability to review images to a vendor and then allow the vendor to use unfettered discretion to decide which images to send to the police. This Court is bound by the decisions of a district court of appeal. Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992). This Court is without discretion to ignore the Arem decision and must dismiss this case. However, while being duty bound to follow the decision in Arem, this Court is free to disagree and to express its disagreement with that decision. State v. Washington, 114 So. 3d 182 (Fla. 3d DCA 2012).
This Court held a full evidentiary hearing. Many of the facts presented at that hearing are contrary to the rational used in the Arem decision. In Arem, the Fourth District relied on the contractual language and a bare finding of facts from the trial court. Because the record below did not contain any evidence of what procedures were in place to give direction to ATS in its pre-screening process, the Fourth District did not have the benefit of this information in finding that ATS was making unilateral and unfettered decisions regarding what images to send or not to send to the police.
Here the uncontroverted facts, as set forth in more detail in the findings of fact above, show that ATS in their initial review, which is permitted by Florida Statute §316.0083(1)(a), have specific straight forward directives provided by the City in its BRQ in sections 4 and 6. ATS’s processors receive extensive training in how to work with the red light images in conjunction with the BRQ directive. The criteria the City’s police have established for forwarding images requires the A-Shot to show the vehicle’s front tires are behind the stop line and the B-Shot to show the entire vehicle has crossed the stop line while the light is red. In some instances the BRQ directs that the video clip needs to be viewed in deciding the vehicle’s position during the red light when the A-Shot or B-Shot are not conclusive. Right turns on red have a directive not to forward images when a vehicle rolls through the turn at less than Fifteen (15) miles per hour unless there is a no turn on red sign. There are directives how to handle emergency vehicles and other government vehicles that meet the basic criteria to forward. The BRQ requires forwarding wherever the DMV information does not match the vehicle in the image. The processors are trained that when the images show anything not covered by the BRQ or they have any doubt, the rule they must follow is to forward the images to the police.
The Defense argues any judgment used by the processors is strictly prohibited by Arem. While the evidence shows that the ATS processors may have to use some degree of decision making in pre-sorting the images into the two queues, whatever decision making the processors use is strictly governed by the BRQ directives from the City. These guidelines, as well as the training provided to ATS’s processors makes it clear that the sole, unilateral, and unfettered decision making found unacceptable in Arem does not exist in this case. (emphasis added).
Understandably the Arem Court was concerned that the UTC was physically coming from ATS and not Hollywood. However, the evidence presented here makes it abundantly clear ATS is only serving as a technical apparatus to mail out the UTC. The sole determination of who will receive a UTC is actually coming from the City without any human interference from ATS. The officer logs on to the ATS server to review the images contained in the working queue. The officer then determines, in the same manner as would be determined for a roadside violation, whether probable cause exists that a violation has occurred. If the officer finds a violation, an “accept” button is selected. Contrary to Arem, this is not a rubber stamp process, between thirty percent (30%) and thirty-five percent (35%) of the images sent to the City’s police are rejected because no probable cause was found. When the officer selects the “accept” button it is an authorization to place his/her electronic signature and badge number on the NOV which the statute requires to be first issued to provide options for the vehicle’s owner to avoid the issuance of the UTC. The computer program which is fully automated then prints and mails the NOV. If the NOV is not complied with within sixty (60) days a UTC is required to be issued. The computer is programed to automatically print and mail the UTC when the statutory time has expired. This evidence clearly shows a UTC is only sent out after the officer has reviewed the
images and made a probable cause determination that a violation of law has occurred and a UTC is warranted.
This Court would agree that only law enforcement officers are authorized to issue a UTC. The evidence presented shows that it is in fact the City that is issuing the UTC after the City’s officer has made the initial determination of probable cause and selected the “accept” button to begin the NOV process. The officer takes no further action to issue the UTC. A fully automated computer program is triggered to print and mail the UTC based on the owner’s failure to elect any of the options under the time frame contained in the statute. ATS only acts as an electronic apparatus to print and mail the UTC. The statute provides that the UTC shall be issued by mailing it by certified mail if the options which exist to satisfy the violation have not occurred within sixty (60) days of the NOV’s issuance. Florida Statute §316.0083(1)(c)1.a. states:
A traffic citation issued under this section shall be issued by mailing the traffic citation by certified mail to the address of the registered owner of the motor vehicle involved in the violation if payment has not been made within 60 days after notification under paragraph (b), if the registered owner has not requested a hearing as authorized under paragraph (b), or if the registered owner has not submitted an affidavit under this section.
This process is fully automated with no humans involved after the officer’s initial finding of probable cause.
The Fourth District did not address the issue of whether the transmission of the UTC data to the Clerk must come directly from the officer issuing it rather than from the ATS server. The trial court in Arem in concluding that transmission of the UTC data from the vendor was contrary to the statute, found the officer did not personally provide the UTC data to the Clerk, had no personal knowledge that ATS transmitted the data, what data was sent, or when it took place. The Defendant has submitted as persuasive authority several trial court orders from other counties that have also found only the law enforcement officer can transmit the UTC data to the
Clerk. The statute controlling the electronic transmission of UTC data for red light camera infractions to the Clerk is contained in Florida Statute §316.650(3) (c) which states:
If a traffic citation issued under s. 316.0083, the traffic infraction enforcement officer shall provide by electronic transmission a replica of the traffic citation data to the court having jurisdiction over the alleged offense or its traffic violations bureau within 5 days after the date of issuance of the traffic citation to the violator.
The question then is whether the statutory language that the officer “shall provide” means that the transmission must be made personally by the officer issuing the UTC as found in the cases presented by the Defendant.
The evidence presented at the evidentiary hearing established that roadside electronic transmission of UTC data, known as E-citations, are generated by an officer through a laptop or handheld computer devise. This information is transmitted to the computer server at the officer’s agency. The Clerk then receives the data through an interface accessed by use of the agency’s user ID and password. The authorization to use the interface and issuance of the user ID is done in accordance with criteria dictated by the State. These E-citations are not personally or directly sent by the issuing officer, it is through the officer’s decision that a violation has occurred and the issuance of the UTC that generates process of transmission of the E-citation.
The process by which red light camera light E-citations are approved for interface with the Clerk is the same as all roadside E-citations except the information comes from the vendor’s server. In addition to police agencies, other E-citation vendors are approved by the State. The procedure by with the transmission of the UTC data for a red light camera violation is transmitted to the Clerk, as discussed above, is totally automated without any human involvement. It is the officer’s determination that probable cause exists that a violation has occurred and the selection of the “accept” button which sets the process in motion. This Court
finds that the process by which red light camera E-citations are transmitted is no different than how all other E-citations are transmitted when an officer issues the UTC roadside. The language of the statute requires that the officer provide the data. This is accomplished by the officer’s affirmative actions; therefore, the fact that the computer program that actually sends the data is that of a vendor does not violate the statute.
Since this Court is duty bound by the decision of the Fourth District Court of Appeals in Arem, the citation in this case must be dismissed.
WHEREFORE, it is ORDER AND ADJUDGED that the Defendant’s Motion to Dismiss is GRANTED.
Given the fact that this Court held a full evidentiary hearing which presented additional relevant evidence not presented to the Arem Court there are questions raised as to whether these procedural differences make this process valid under the statute. This Court was advised that there are other lower courts around the state that have declined to follow Arem because of procedural differences. This leads to differing decisions depending in which county the UTC is issued. These issues present a statewide application as red light camera programs exist throughout the state and impact a great many vehicle owners. This Court certifies the following three questions to the Third District Court of Appeal as a matter of great public importance.
1. Does the review of red light camera images authorized by Florida Statute §316.0083(1)(a) allow a municipality’s vendor, as its agent, to review and then select which images to forward to the law enforcement officer, where the municipality has provided the vendor with specific written guidelines for determining which images to forward or not forward?
2. If the vendor is permitted to review and then forward images in accordance with a municipality’s written guidelines, is it an illegal delegation of police power for the vendor to print and mail the UTC, through a totally automated process without human involvement, after the law enforcement officer has affirmatively made a probable cause determination and authorizes the prosecution of the violation by selecting the “accept” button.?
3. Does the fact that the UTC data is electronically transmitted to the Clerk of the Court from the vendor’s server via a totally automated process without human involvement violate Florida Statute §316.650(3)(c) when it is the law enforcement officer who affirmatively authorizes the transmission process by selecting the “accept” button?
If any of the above questions is answered in the negative is dismissal of a notice of violation or uniform traffic citation the appropriate remedy?
DONE AND ORDERED at Miami, Miami-Dade County, Florida this 25th day of September, 2015.
cc: Robert Dietz, Assistant Attorney General, robert.deitz@myfloridalegal.com
Samuel Zeskind, Attorney for City, szeskind@wsh-law.com
Ted L. Hollander, Attorney for Defendant, tedhollnader@theticketclinic.com

This information is provided for information purposes only and should not be construed as formal legal advice. Nothing contained herein should be considered to serve as the basis for the formation of an attorney-client relationship. Consult an attorney for additional information.