Friday, November 20, 2015


New court disclosures from the government admit that over two hundred hours of recordings were made from secret devices placed by FBI agents around a federal courthouse during a federal criminal investigation of possible bid rigging in public foreclosure auctions. Needless to say no federal judge authorized the unlawful bugging of private conversations because the Justice Department and the FBI never sought permission. They knew all too well that permission would have been denied.

Unknown FBI agent gathers evidence
Why stop there? Why not place recording devices in every washroom, stairwell and elevator of the federal courthouse? Why not bug the courtrooms and the chambers of every federal district judge? Why not bug nearby restaurants and coffee shops? Why not use solar panels to power bugging devices on nearby streets of every courthouse in America so that the government can be properly informed of any defenses those accused of crimes may articulate when speaking with their defense counsel?

The Defense lawyers filed with the federal judge a brilliant motion with memorandum of law to suppress the improper evidence, so well written that I plan to steal as much of it as I can the first crack I get. The federal district judge hearing the criminal case should not only throw out the 200 hours of private conversations recorded but every federal indictment derived from possible information gleaned from those recordings. Prosecutorial misconduct from the Justice Department should never be tolerated by federal judges. Further, those involved in this travesty of justice should not only be disciplined, reprimanded or fired, but face the same criminal consequences any citizen would face. 

Clearly, those federal agents and prosecutors were involved in a criminal conspiracy of criminal conduct themselves. In fact eavesdropping by electronic surveillance via video, audio or data is a crime. What do you think would happen to a typical citizen found guilty of placing secret recording devices at Clearwater's Pinellas County Courthouse or Tampa's Federal Courthouse for the Middle District of Florida or just outside a store at International Plaza? 

Don't believe that this over-reaching to prove possible criminal conduct is just something our federal government does. It also happens locally when police repeatedly use improper surveillance techniques to create fast strike shake and bake criminal cases especially in drug cases. For example, Pinellas County Sheriff's Office detectives used inappropriate surveillance techniques based on where people shop to find evidence in marijuana cases. They set up video cameras to take vehicle tag numbers in front of a store selling hydroponic plant supplies on the theory that marijuana grow house owners were likely users of these plant supplies: then the detectives used the trumped-up information to further their investigations and obtain search warrants. 

In our age of faced-paced technological advances American federal and state judges must stand up for our liberty and freedom by stopping over-reaching government sanctioned surveillance. Although the Florida Supreme Court stopped officers from using our GPS in cars and phones to spy and track Floridians, our government continues to find new, devious and determined ways to undermine the sanctity of our privacy. 

Thursday, November 19, 2015


As a criminal defense lawyer it's my duty to help push my client thru the criminal justice system by making sure that the outcome achieved is the best possible under the circumstances. The system is unforgiving and often unfair with the results not always tied to actual guilt nor innocence. Not every client is innocent nor is every client even honest, yet every client has a right to expect the best possible solution when confronting an allegation of criminal conduct.

The best outcome in any criminal case is to persuade the State Attorney's office in Clearwater not to file the case. Once the prosecutors make a decision to "no file" a charge the case is effectively finished unless new evidence of guilt is uncovered. Nor is there any punishment, restitution nor court supervision. If there has been an arrest, then it may be possible - though it's unlikely - to even recover civil damages for the false arrest if it can be established that the arrest was improperly made.

If the the State Attorney's Office does file felony or misdemeanor criminal charges, then the next best opportunity to salvage one's reputation and freedom is to have the criminal case dismissed. If the victim, the arresting officer and the state attorney have no objection, then it may be possible to apply for the Pre-Trial Intervention Program, which is one of the five best ways to have criminal charges dismissed or reduced in Florida 

To successfully apply the defendant must have no prior record of misconduct and complete a probationary period after which the criminal charge is dismissed by the judge. This is an effective tool to dismiss nonviolent charges such as petit theft, grand theft, embezzlement and drug charges such as marijuana or cocaine possession. The program can also be used for case dismissal in some minor crimes that do involve a limited amount of violence such as simple battery, aggravated assault and domestic battery. More violent crimes such as aggravated battery or attempted murder would not be within the prevue of the program.

A new program is being tested in Florida, but has not yet reached the Tampa Bay Area that effectively decriminalize small quantities of drugs and other nonviolent crimes such as theft with civil citation programs.

Thursday, November 12, 2015


In an astonishing admission of corruption the FBI and the Justice Department acknowledged that for over twenty years almost all of its examiners in its elite microscopic hair comparison unit gave false evidence in criminal prosecutions. Almost all of the faulty evidence helped federal and state prosecutors win convictions.

Peter Paul Rubens - Samson and Delilah - Google Art Project.jpg
FBI agent Delilah takes hair sample from Sampson
Forensic evidence has always been based on subjective nonscientific conclusions that have the veneer of science making them difficult for defense lawyers to successfully attack. How much injustice did the prosecutors buy with false microscopic hair comparison evidence? The Washington Post tells us how many lives were ruined with false forensic evidence:

In 268 jury trials in which hair comparison evidence was used against defendants, the FBI gave false evidence in 257 of those cases. Of those 257 trials with false evidence 32 were death-penalty cases.
University of Virginia law professor Brandon L. Garrett said the results reveal a “mass disaster” inside the criminal justice system, one that it has been unable to self-correct because courts rely on outdated precedents admitting scientifically invalid testimony at trial and, under the legal doctrine of finality, make it difficult for convicts to challenge old evidence. 

How could this happen for over twenty years? First, there were no formal written standards until 2012 that adequately defined acceptable and unacceptable hair comparison analysis in court. Second, there were no competent studies that accurately established that hair from different people could never still match nor is it that supposition even now scientifically provable. Third, more accurate DNA testing of similar but different hair samples found that FBI comparisons were flawed. Fourth, any subjective evidence is not really scientific evidence, it's guessing. This is not only true for hair samples but true for other types of forensic evidence such as fingerprint evidence.

Finally, this continued for far too long because it became embedded in criminal law despite lack of absolute scientific standards. In many cases the evidence of hair samples was subject to antiquated legal precedent which allowed prosecutors to argue that comparison results were in fact scientific proof of guilt. This is especially troubling since in essence it means federal and state judges allowed massive injustice in the guise of justice by forcing jurors to accept the FBI analysis as scientifically based fact.

What can we do? Clearly there should never be "finality" for criminal law injustice. It's not enough for FBI agents, prosecutors, judges and defense lawyers to simply apologize to those convicted with false testimony. Whatever effort and cost necessary to right this wrong must be made. The remedy requires opening up these convictions with new trials, because the goal of criminal law should be fairness not finality.

Monday, November 02, 2015


For several years the federal government has declared the Tampa Bay area to be the national hotbed of tax fraud even to the extent that a drug search once instead yielded a $500 million dollar tax fraud scheme in Tampa. But no wonder tax fraud continues to blossom in the bay area, if it's true that Tampa police detectives were in on the creation and manipulation of false tax returns. 

US Dollor notes
Even disgraced Detectives need money now & then.

A Middle District of Florida grand jury in Tampa recently indicted two detectives who allegedly disgraced not only their badges but their marriage by using the official police database to give a third person information used by that person to make fake tax returns. The tax refund money was then used according to the indictment by the married Tampa police detectives to pay down credit cards and repair their swimming pool. Apparently their combined salary of well over $150,000 just wasn't enough to live in the style they felt they deserved as detectives. Under federal criminal law the use of the databases could add two years to the federal sentence if convicted. 

Among the databases allegedly abused during the course of the criminal conduct was the Florida state driver and motor vehicle records from which provided relevant protected private information such as social security numbers, dates of birth, full names and addresses. The fraudulent tax refund requests could then be made to look genuine. 

One victim of the tax fraud was a witness to an attempted murder. This is especially shameful and disappointing if proven true. Within a week of his data being mined by sign-on logins from the two married detectives a fake bank account was opened in the witness's name, eventually filling the account with money from the fraud. Even good citizens might justifiably be reluctant to be involved in the criminal process if their vital personal information isn't safe and secure even from the police who conduct investigations. But in the Tampa Bay area police conduct has repeatedly been questioned such as when a Pinellas Sheriff's Detective resigned incident to an internal affairs investigation after being accused of using fake subpoenas, donning the clothes of utility workers to avoid applying for proper search warrants and possibly committing burglary and armed trespass. Instead of just allowing officers to resign or firing them, officers must be held to the same standards as the citizens they are sworn to protect. Perhaps if these earlier insidences of clear police misconduct had been followed with indictments of police officers, these two detectives would not have given into temptation.

Among the other charges the former detectives face are money laundering, obtaining information from a protected computer, aggravated identity theft, wire fraud, theft of government property and of course conspiracy since it would seem there was allegedly an agreement by the couple to carry out a plan to conduct criminal activity. One can't help but wonder where it went wrong for these two people. Were they fundamentally corrupt? Or were they good detectives who became jaded by the the day to day corruptions one often sees from police, and which are tolerated by not only the Tampa Police Department but by the Pinellas Sheriff's Office, the Clearwater Police Department and the Largo Police Department, such as when an officer tells a lie while on the witness stand. The truth as any prosecutor, judge or defense attorney will tell you is that officers often have incentives to commit perjury. Maybe if police departments took every incidence of police misconduct seriously these larger problems of police integrity and honesty would be almost unheard of.

Wednesday, October 28, 2015


It may not be a problem a typical American daily faces, yet providing hush money, lying to the FBI about it and then being subjected to criminal prosecution for encroaching on the $10,000 bank limits is a signal that in the United States our Federal prosecutors and FBI agents have far too much leverage to force guilty pleas in questionable cases. I'm referring of course to former house speaker Dennis Hastert's plea of guilty in federal court this morning. My hope was that somehow this train wreck would be avoided and that better minds in search of authentic American justice, perhaps even a federal judge, would prevail in stopping his change of plea to guilty.

An American flag smothers Speaker Hastert 
This case stinks. Let's count the ways. First, federal prosecutors and/or federal agents broke federal law by leaking information about the case to taint the defense and benefit the federal prosecution. When Hastert was arrested, law enforcement let it be known that $3.5 million in hush money had been paid by Hastert to keep a long ago possible victim of child abuse from publicly identifying him as a former sexual batterer or predator of children. Why the leak by the feds? Because someone desperate enough to pay that kind of hush money, would do anything to avoid a public trial that airs out everything.

Second, Hastert foolishly talked to the FBI agents without a federal criminal defense attorney being present. The indictment details the essence of the actual provable crime established by the government - that Hastert lied to FBI agents about why he was taking out large sums of cash in $50,000 increments. He stated that he didn't trust the banking system when in truth he was paying hush money. So what does the FBI do? Rather than investigate the possible blackmail Hastert was subjected to, it pulled out the infamous Martha Stewart option of charging federal felonies for not being honest with FBI agents. When one ponders the Stalinist aspect of these statutes how can one help but think they are un-American. No wonder as a condition of his change of plea to the more substantial charges this one was dropped as a condition of the change of plea and the federal plea agreement. But make no mistake this was the dagger that with the leaked publicity of the hush money forced Hastert to change his plea to guilty.

Third, the federal prosecutors and the FBI have placed themselves in the unfortunate position of appearing to condone blackmail. Whatever Hastert did or didn't do the FBI investigation revealed that he broke the banking law in order to provide a substantial amount of money to keep a dark secret hidden. 

As for the alleged blackmailer, did he report this windfall of cash as income and pay proper taxes on it? Did he place the cash in banks under the $10,000 limit in an attempt to skirt the banking law, thus breaking it? Was the alleged blackmailer as direct and honest with the FBI agents as Hastert was when they came to say hello? Was the agreement of payments between the alleged blackmailer and the congressman simply a cover for another crime? 

Finally, Hastert is 73 years of age and does not appear to be in good health. A reasonable prosecution and investigation would take his age, health and the underlying facts of his situation into account in making a finding that it would be in no ones best interest to prosecute Hastert least of all whoever it was who was  blackmailing him. Congressman or Blackmailer balance the words on your tongue till they both come spitting out. 

And now what will happen to Hastert? Isn't it punishment enough that this man must admit he was once a Congressman and was even elected their speaker? Under the Federal Sentencing Guidelines that the Federal sentencing judge must use in determine a fair sentence for Hastert he could receive up to five years for the crime, but more likely under the prevailing federal sentencing scoresheet a sentence of between zero to six months is likely.

Thursday, September 24, 2015


Despite entrenched opposition from the Department of Justice and other prosecutorial organizations the United States Sentencing Commission's new changes for federal economic crimes (also known as white collar crimes) will take effect on November 1, 2015. Because federal sentencing for these crimes is driven almost entirely by dollar amounts of victim loss, many years of inflation made it far easier for federal prosecutors to demand hefty sentences in these cases with many federal judges lacking the courage to go under the sentencing guideline ranges.
Image result for federal sentencing guidelines 2B1.1 with new loss numbers for November amendment
Inflation Adjusted Victim Loss but no Common Sense

The new inflation adjusted victim loss amounts will reduce guideline ranges for most federal defendants facing these economic crimes that include scheme to defraud, fraud, embezzlement, theft and tax evasion. Yet the underlying problem in federal sentencing for these Section 2B1.1 economic crime cases has not changed in that the dollar amount of loss still drives the federal guideline range sentencing structure to the belittlement of other factors that should be relevant in sentencing. This is absurd. Although the dollar amount is important and a wise judge should certainly give it some consideration, in many cases the dollar amount alone dictates a long prison term. 

In fact many first time nonviolent offenders are sent to federal prison for hefty terms for these economic crimes, thus denying the defendants the ability to ever make restitution to their victims. Since federal sentencing is rigged so that the amount of loss is the over-riding factor in these cases, you'd think some consideration might be given to those who actually suffered the monetary loss. What do the victims actually want? Isn't it likely that most victims would prefer defendants to make restitution than languish in prison? In a just society it should be a very rare thing to punish any first time nonviolent economic crime offender with prison.

Clearly Federal Judges (rather courageous or not) should be given an array of sentencing options in these federal criminal cases based on the entire criminal conduct including factors such as the number of victims, the average loss per victim, the likelihood of restitution and the period of time over which the crime occurred. These factors combined with any prior history of criminal conduct and personal characteristics of the defendant should then be weighed by the judge in forming the sentence without the judge forced to give undue consideration to the total loss amount as delineated in the Section 2B1.1 federal sentencing guideline amendment. 
Ultimately fair sentencing should be about more than merely adding up a list of losses to place nonviolent economic criminals in federal prison, it's about doing what's right for the victim, for the defendant and for society.