Tag Archives: obstruction

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.

Charlotte County Man Arrested after Filming Cops, Harrassing Witnesses

Ian McGuire

Charlotte County Deputies served a warrant today on Ian McGuire, accusing him of three counts of Harassing a Witness, two counts of Obstruction of Justice, and Breach of the Peace. McGuire showed up at an investigation in April and started filming deputies who were searching a warrant. They’d have a hard time charging him with anything related to that, due to his First Amendment protections. However, he took it a step farther by stepping into the crime scene area, arguing with Deputies, and allegedly mocking witnesses that were speaking to deputies. He has a First Amendment right to film public interactions, but he may have crossed the line if his words or actions interfered with the deputies’ lawful investigations (they were responding to a report of an aggravated battery). McGuire posted a 19 minute video of the incident, online. McGuire has previously been in the news for his activism.

Florida Man Hides Legless Fugitive Girlfriend in Plastic Tote

kystle lee anderson

Krystle Anerson

Krystle Lee Anderson lost her legs after she used a BB gun to hold some people hostage, resulting in a shootout with law enforcement that caused her disability. That didn’t keep her from getting into trouble, as she failed to appear in court on the armed kidnapping and assault charges that stemmed from her Burger King shootout in 2015. Law enforcement got a tip that she was hiding at the Winter Haven home of her boyfriend, John Carr Jr.

john robert carr jr

John Robert Carr Jr.

When marshals arrived at his home, Carr claimed that she wasn’t in the home, but one of the officers knew better: he saw Carr through the window as he stuffed Anderson into a plastic storage container. Officers located her and took her into custody. Carr was also charged with resisting arrest/obstruction of justice. Florida doesn’t have a specific law against harboring a fugitive, but he could be charged as an accessory after the fact, which would be a felony. Anderson faces life in prison for her charges.

UPDATE: Here’s the Latest on the Ryan Lochte Situation

UPDATE: Lochte has issued a statement.

So, Ryan Lochte was out with some other U.S. Swimmers and later reported a robbery. The New York Times has a full breakdown of the timeline of events, and the current status of everything.

Basically, the men had their cab stop at a gas station to use the restroom. Lochte initially said they were pulled over by someone pretending to be a police officer, but later publicly said they had stopped at the gas station. He says they were stopped by a man or men with badges, and ordered to the ground and to hand over their money. The gas station says they they damaged some of the facilities, and that a security guard confronted them. Video from the gas station shows them on the ground- that actually supports part of Lochte’s statement. Some people are now saying that the security guards may have tried to get them to pay, or extorted them, while others say the men offered money to the gas station. The whole thing is weird.

The common law definition of Robbery is taking the property of another by force or the threat of force. If the guard, who had a gun, ordered Lochte and the swimmers around and demanded money, it could constitute common law robbery. I do not know the definition of robbery in Brazil, but it potentially could fit, or could fit some other extortion charge. That’s not to say Lochte and/or the other swimmers are blameless, they could be facing charges for destruction of property, even if it bore out that they weren’t charged for false report.

Swimmers Jack Conger and Gunnar Bentz, who were pulled off a plane, gave a statement to police that did not indicate a robbery, and were permitted to travel back to the United States. Jimmy Feigen made an arrangement to make a payment to a Brazillian organization in a deal to avoid prosecution- which sounds like a deferred prosecution deal that one might see here. Lochte may end up doing something like that, as the charge is not ultimately that serious of an offense, and is more of a case of him acting drunk and stupid than criminally. It probably would not have been an issue if he had heeded the advice of USOC, and not said anything, instead of giving a graphic interview to the media the next morning.

The lie is usually worse than the crime.

via Deadspin

 

Lochte Indicted! 2 U.S. Swimmers Indicted

Ryan Lochte and James Feigen have reportedly been indicted by Rio police. Reports indicate that have been charged with false report of a crime (in Florida, that’s only a misdemeanor offense). Feigen is reportedly still in Brazil, but Lochte has already returned to the United States. Developing…

More on Lochte, Something Fishy May be Going on…

Reports are coming out of Rio that the swimmers in the alleged robbery may have been in a fight with a gas station attendant. They will hold a news conference at 2 pm.

UPDATE: The Gas station owner claims they were peeing on the gas station, after being asked to use the restroom.

UPDATE 2: Apparently his teammates may have dimed him out and told authorities there was no robbery. He could be in trouble both for false report, and for the incident at the gas station.