Tag Archives: prostitution

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.

Hooker Arrested for Prostitution

brianna hooker

Brianna Hooker

Lee County ran an undercover prostitution sting over the weekend and picked up a hooker… Brianna Hooker. There were 14 more arrests from the operation, in addition to Ms. Hooker. The undercover detective invited her to a location where he was staying, whereupon she agreed to have sex with him, then asked if she could smoke up before she performed for him. She has an extensive history of drugs and theft related offenses, and is facing drug possession charges as well as a violation of her earlier probation for this new charge. As is so often the case, the drug abuse likely led to the theft and prostitution as she tried to feed her addiction. That’s likely the case for several of the co-defendants from this operation.

Web Page Publishers Charged with Pimping

carl-ferrer

Backpage CEO Carl Ferrer

Backpage.com is known among the criminal bar as a webpage that carries personal ads targeting ‘adult services’, like the old back pages of tabloid papers. It’s not unusual for that to be the source leading to prostitution arrests. California Attorney General Kamala Harris initiated these charges as part of a crackdown on human trafficking. As far as I know, it’s the first time a webpage publisher has faced criminal charges for a hosting-type situation. It will be interesting if these charges will hold up, and for the First Amendment ramifications for charging a publisher. Some of the facts cited by the LA Times are damning, as these men were making millions from the website, and there are shocking numbers of minors being trafficked by pimps on Backpage.

Alleged Prostitute Claims the Sex Was Free

Happy Friday!

Crystal Sweigart, who has been charged with running a prostitution ring in Mount Joy, Pennsylvania, has a rather novel defense to the prostitution charges. She admits that she was giving unlicensed massages (which is a crime, itself), but says that the sexual contact that occurred afterward was merely fun between friends after work. She said, “Anything that happened when the massage stopped becomes two consenting adults having fun,” Sweigart said. “What I’m complaining about is (police) labeling it as [prostitution].”

Legally that would be a defense to the prostitution charge. However, the fact that the patrons gave her additional money when the sex acts occurred belies the fact that it was merely fun. It sounds like sexual contact in exchange for money. She admits that it’s incriminating: “Did I refuse the money? No,” Sweigart said. “Should I have or would it have looked better on me if I didn’t? Probably.” Two men have also been charged for patronizing prostitutes. Beware the happy ending…

Another Big Drug Bust by LCSO

The Lee County Sheriff has conducted several large-scale drug stings in hte last several months, and announced the completion of another one today, this time in the Suncoast Estates area of North Fort Myers. So far, 31 people have been arrested in the sting.

http://www.sheriffleefl.org/main/index.php?r=news/index&id=12468

Sheriff’s Office Arrests Men as Favor

LCSO wants people to know that there has been a rash of robberies. How did they let them know? They set up an undercover sting operation and arrested nine men for soliciting prostitution. That’s all well and good LCSO, but don’t pretend that this sting operation was a goodwill gesture to these guys. “Aren’t you lucky you didn’t get robbed… now go to jail and we’ll publish your names on Facebook.”

Of course, they could’ve published a press release about the rash of robberies. I’ve seen it on TV (Elementary did an episode about that last season,) but I haven’t heard of any reports of it actually happening. LCSO is more interested in making some misdemeanor arrests and issuing press releases than helping out these johns! They may be breaking the law, but its preposterous to claim that the sting was done, “In an attempt to make the public aware about a rash of robberies.” Don’t pretend that, “the reason for the operation was because more and more “johns” have been robbed.” If that was the case, you wouldn’t have arrested these guys. Also guys, prostitution is illegal: don’t do it. Police love to put up prostitution sting photos…

Also, the headline, “Nine Arrested for Naughty Acts” is cute. Thanks LCSO public info team for making me smile at that.

https://www.facebook.com/sheriffleefl/posts/591004477617495