Category Archives: Fort Myers / Lee County / Southwest Florida #SWFL

Wendy’s Employee Chases Customer with Pan of Hot Grease

A customer got in an argument with with a Lehigh Acres Wendy’s employee, who proceeded to chase the customer with a pan of scalding hot grease. Fortunately, one of the other employees was able to knock the pan out of his hand before he was able to get to the customer, who was in the parking lot. No charges have been filed at this time.

It’s getting dangerous to get fast food… a few weeks ago, a woman in Colerain Township, near Cincinnati, Ohio got in a similar argument about getting refund over a mistaken order. She started throwing food at the staff, and the manager responded by throwing a blender at her. That case ended badly, as the blender broke the woman’s nose and cheekbone. At last word, no charges have been filed, and are unlikely to be filed, since the customer initiated the violence by throwing things at the manager. She may still be able to sue, and indicates she will pursue the matter. Something about waiting on fast food orders can trigger people, as I’ve seen several disputes end in violence.

Here’s the video from the Colerain McDonald’s incident:

Here’s the original story from WLWT:

And the full story after the video was released:

UPDATE: That’s not even getting in to other customers- reports are out that somebody got stabbed at Popeye’s over the new chicken sandwich!

FWC Breaks up a Turtle Trafficking Ring

Michael Boesenberg

Two Fort Myers men are charged in a turtle trafficking ring that may have netted tens of thousands of dollars. It’s the largest turtle theft bust in Florida history, and the turtles recovered had a black market value of $200,000. FWC alleges that Michael Clemons and Michael Boesenberg were selling wild-caught turtles to overseas interests for money and sometimes for marijuana.

Some of the rescued turtles

Michael Clemons

It’s important to police wildlife violations to protect the fauna of Florida. FWC says Lee County was hardest hit, and that local turtle populations may be substantially affected. The good news is that more than 600 turtles were rescued and returned to the wild.

FWC indicates this bust was related to the Gator in Yoga Pants bust with turtles in a Ninja Turtle backpack arrest from a few months back. FWC has more details on the concerns of wildlife trafficking.

One of the Sievers Homicide Trials Likely to Start Tomorrow

It’s been over four years since Dr. Theresa Sievers was brutally murdered in her Lee County home. Her husband Mark Sievers, Mark’s friend from Missouri Curtis Wayne Wright, and an apparent acquaintance of Wright’s who is also from Missouri, Jimmy “The Hammer” Rodgers were all arrested for the killing and charged with First Degree Murder. Curtis Wright later entered a plea to murder in exchange for 25 years in prison with an agreement to give substantial assistance in the other cases, which means he will need to testify for the state. Sievers and Wright are facing the death penalty.

Theresa Sievers

Both defendants are seeking a continuance of the trial, but the judge is eager for prosecution to go forward. He has set four weeks aside to handle the case on the court calendar, and a few weeks ago the cases were severed, so they will not be tried together. That means only one can go, and Rodgers is the most likely to start this month. Since the jury must be death qualified, it will take several days to pick a jury, and maybe a couple weeks, especially in light of the media coverage the case has gained. But we won’t know until the cases go before the judge in the morning.

Details Released in Arrest of FMPD Captain – the Case Still Looks Like Garbage

Capt. Jay Rodriguez

The affidavit for the warrant in the arrest of FMPD Captain Jay Rodriguez has been released, and as we anticipated in the detailed post about the charges yesterday, it doesn’t look like the charges are legally sustainable. As expected, the Misconduct and Prostitution Charges both stem from actions that happened in 2013, several years beyond the statute of limitations.* One newly revealed detail is that the investigating Detective not only accuses Rodriguez of misconduct for being involved in a false report, but also for improperly receiving a benefit with city money for the alleged sexual act. That allegation might sound good, except that he was working in an undercover capacity for the city police department, and his acts led to two arrests. That is still not a prosecutable case. It definitely would have been better practice for Rodriguez to have stopped the suspect before actually receiving a sexual act, but that does not make his action criminal. In fact, it sends a bad message that if the City gets pissed at its cops, it’s going to try to prosecute them for doing their job.

As to the perjury charge, it appears the questions posed to Rodriguez were a little clearer than indicated in the earlier press release. Rodriguez was asked “were you ever involved in sex while on duty” and “have you ever engaged in sexual activity on duty with a sex worker or prostitute”, which Rodriguez denied. These questions are not as vague as “did you have sex”, but they are not so specific that there is not ambiguity. Definitely hard to prove beyond a reasonable doubt. More importantly, this confirms it was an internal affairs investigation, which does not appear to be an “official proceeding” to satisfy the required element of the perjury statute.

Captain Rodriguez may have been involved in wrongdoing, especially if he directed the fabricated statements that led to the arrests of the two individuals. Ultimately, charges were apparently dropped against both of them. However, these charges, under more detailed scrutiny, still look like garbage. If Detective Kendall Bores, who swore out this warrant, does not have a better understanding of the law, that Detective should be reviewed for incompetence. And even if the Detective didn’t catch the problems, it should have gone through the State Attorney’s office (of the 12th Circuit) for review before the warrant was sworn out. But caution gets thrown to the wayside when political pressure gets applied on a high-profile media case.

Also, NBC-2 spoke to another attorney who agrees that the old charges may be barred by the statute of limitations.

Here’s a link to yesterday’s even more detailed post as to why these charges are garbage. To reiterate, police misconduct, and especially lying or falsifying police reports, deleting evidence and the like are extremely bad… but that’s not what Rodriguez is being charged with. As it is, these charges are, in my humble legal opinion, bullcrap, and I call it like I see it.

*Update, the News-Press points out the charges may fit an exception to the statute of limitations, as the accused is a public employee. The charges are still crap, however. They have also posted the full affidavit for the warrant.

FMPD Captain Arrested, but the Charges may be Fatally Flawed

jay rodriguez

Capt. Jay Rodriguez

So often, the cover up is worse than the crime. That’s the case here, as FMPD Captain Jay Rodriguez is charged with perjury and falsifying a document – two felonies – to cover up for soliciting prostitution, which is only a second degree misdemeanor. However, these charges may not pass muster when we get a chance to look at them. The arrest affidavits are not publicly available yet, so information is limited to the press release and related media coverage. 

The charges apparently date to an undercover sting operation in which Capt. Rodriguez was involved all the way back in March, 2013. He supposedly received a sex act and then authored a falsified account of his actions. This appears to be the basis of the prostitution and falsifying document charges. However, it appears that these charges are outside of the statute of limitations, which would prevent him from being prosecuted. The statute of limitations for a felony, such as falsifying a document, is generally three years while it’s only one year for a second degree misdemeanor. So, prosecution for these charges is more than three years too late!

I contacted FDLE to see if they had any comment about the statute of limitations, but they say the State Attorney makes the filing decisions. These cases are being handled by the 12th Circuit State Attorney, not our local prosecutors.

Further, it’s highly unlikely that Rodriguez could be prosecuted for receiving a sex act during an undercover operation. He was operating in his capacity as a police officer at the time, and that is a defense to criminal charges. For comparison, if an undercover officer buy drugs from a drug dealer during an undercover operation, the officer cannot be charged with buying the drugs. It may be unpleasant, but officers are given leeway under the law in these circumstances. The better practice is assuredly to make the bust before the actual sex act, once an agreement is in place, as indicated by the professor in this article. However, the officer is not prosecutable for his violation of the law. There have been several undercover operations locally where a sex act unfortunately took place, but those officers are not facing charges.

Even worse, the timing of this arrest makes these charges look politically motivated. Just 10 days ago, the News-Press ran an article about officers who have been on paid leave for a long time, prompting city councilmen in the article to say that they wanted to see some action. I cannot demonstrate that the FDLE was moved by political and media pressure, but here we are less than two weeks later with questionable charges. Now the city will likely commence termination proceedings. They got what they were looking for to try to stop paying Rodriguez.

The final charge appears to be perjury for lying in the internal investigation. FDLE indicates that Captain Rodriguez denied having “sex” while on duty. Even if the state can prove that a sexual act occurred (the alleged act was not on the video), they will have a hard time proving that he was committing perjury when he said he didn’t have sex on duty. The most common usage of “sex” would refer to sexual intercourse, and unless there was some better specificity in the interview… it’s not perjury. Further, an interview given in an internal investigation is almost certainly not an “Official Proceeding” as defined by the statute. Perjury usually means lying in court or to in some sort of formal hearing, not simply in a police interview. There is a separate misdemeanor charge for giving a false statement to a police officer, but unless there were some really specific questions being asked about the nature of the sexual activity, even that allegation would be difficult to prove. This charge is also unlikely to be provable beyond a reasonable doubt.

Another questionable issue related to these charges is that WINK news published what appears to be a mug shot of Captain Rodriguez. What’s interesting about that is that Florida Statute prohibits the release of mug shots of law enforcement officers. WINK is not in the wrong for publishing it, but the question is where did they get it? Was his mug shot illegally provided to the media? At this point, these charges, and the way they are carried out, create more questions than answers. I am electing not to republish the mug shot in this article, not so much because of the prohibition on dissemination, rather because I think the charges are bogus and have decided to only publish the professional photo that has previously been widely distributed.

Finally, these charges, and the likelihood they get dismissed, will end up serving as a cover for what should be the biggest scandal related to this whole thing. A Fort Myers police captain has been accused of lying, falsifying reports, instructing other officers to assist in his cover up, and possibly deleting video evidence of a criminal investigation. That is the issue we should be most concerned about, especially in light of the ongoing corruption probes at FMPD going back several years. While Captain Rodriguez shouldn’t be jailed for lying and saying he kept his bottoms on since it’s outside the statute of limitations, we should be terribly concerned that the department covered for his lie for six years. That’s a big lie, and if someone was charged with criminal acts, lying about it is far more serious for the effect it may have had on the integrity of our criminal justice system.

Here’s an edit of the video in question, from the News-press.

*UPDATE* NBC-2 reports he has been put on unpaid leave. I don’t blame Chief Diggs under the circumstances, but it shows that the arrest helped the City with their public pressure to take action.

Woman who had a Gator in her Yoga Pants Sentenced

Ariel Marchan-Le Quire

A few weeks ago, we brought you the story of a Fort Myers woman who tried to hide an illegally taken alligator by stuffing it down her yoga pants. She also had several dozen turtles stuffed in a Ninja Turtles backpack. This week in Charlotte County Court, she entered a plea and was sentenced to 2 years of probation for several wildlife violations. She will also have to complete 200 community service hours and make a $500 donation to FWC’s Wildlife Alert fund. The money may be a challenge, as records indicate she is homeless. She missed her first court date and spent a little time in jail, probably because she couldn’t afford to bond out. Still, it’s important for wildlife protections to follow regulations on fishing or collecting wildlife.

Let this also serve as a reminder, as always, the ‘not my pants’ defense is not a strong claim.

The alligator, after pants-removal

Earlier coverage.

3-Year Old Cold Case Closed with Murder Charges Against Former Football Star

Hayzel Obando was found dead in her Fort Myers apartment on Valentine’s Day, 2016. Now, more than three years later, her husband has been arrested and charged with her murder. Earl Antonio “Tony” Joiner was arrested last week in Polk county and charged with Second Degree Murder. The case presented challenges from the start, as it was two months before her death was ruled a homicide. This week, a crew from the TV show ‘Cold Justice’ was in Florida, assisting with the investigation.

Tony Joiner played for the Florida Gators on their National Championship team in 2006, and was a captain his senior year in 2007. As NBC-2 points out, he’s the second member of that team to be charged with murder, after Aaron Hernandez.

Early Antonio “Tony” Joiner, via NBC-2