Friday, December 02, 2016

THE NEW FEDERAL CRIMINAL PRACTICE BOOK FOR LAWYERS, DEFENDING A FEDERAL CRIMINAL CASE

I've gotten my greedy hands on the latest 2016 edition of Defending A Federal Criminal Case by the Federal Public Defenders of San Diego priced at $399.00 for three volumes. It is - as were the previous editions of this book - a definitive legal guide for federal defense lawyers and something every defense lawyer should have in that arsenal of last resort, the firm's legal library where the Jack Daniels whiskey is stored. 

It also makes for for some heavy lifting in lieu of your gym membership that lapsed some time ago should you heft them all together and throw them in your briefcase to say, fight some battle in federal court. I suggest carrying large helium balloons to help carry the load. Though I suppose the makers of this fine edition have solved that potential problem by also providing the book as a searchable PDF download. For a limited time certified CJA defense lawyers may get the books free of charge, after that you'll need to burglarize the Middle District of Florida Federal Defenders Office or try to buy mine page by page if it comes to that.

So why is this set of books so useful for Federal Criminal Defense Lawyers? It covers everything from that federal arrest, to federal indictment, to federal bond hearing arguments, to an analysis of every major federal criminal violation, to federal trial and finally to that federal appeal you were hoping you'd avoid before that fatal federal verdict. Although these books were created in California they cite the latest law from a variety of Federal Jurisdictions especially where there are inconsistencies. This allows the user to not only have some ground level working knowledge of the relevant legal arguments from his or her jurisdiction, but some ideas as to the best standard arguments from more progressive parts of the country, which as we all well know is any place not part of the Eleventh Circuit.

The books are clearly a labor of love for the Public Defenders of San Diego, Inc who offer their cumulative years on how the federal criminal law is changing for a better idea of how federal criminal law is in actual practice now. In the best way these books are what you'd hope they'd be, a definitive voice giving unbiased advice for every step in a criminal case with the goal of always finding the best possible result for every issue.


Tuesday, November 29, 2016

WHY DO FLORIDA DOMESTIC BATTERY ALLEGATIONS ALMOST ALWAYS RESULT IN ARREST & PROSECUTION?

In Florida domestic battery allegations almost always result in one of the spouses being arrested. It isn't always the one who started the fight, nor the one who called 911, nor even the one who seems to be hurt the most who is arrested. In Pinellas County as in the rest of Florida domestic battery, assault, aggravated battery, aggravated assault and spouse battery are criminal acts that are believed to be threshold crimes. 

Not only are the crimes viewed as significant in and of themselves but judges and prosecutors pursue sentences with added heft because studies have shown that some unaddressed small violent acts if not corrected may lead to the commission of more extreme violent acts. Because even small violent acts are taken seriously an arrest is likely as is a thorough prosecution of each case even when the victim does not wish to prosecute as the State of Florida is also viewed as a victim in these cases.

At a minimum for misdemeanor arrests and convictions such as for simple battery, assault or simple domestic battery punishment may include anger management classes as a condition of six months probation in lieu of jail. Also, if guilt is admitted it may be possible to enter a Pretrial Intervention Program within the Pinellas County Domestic Violence Court with the charge being dismissed after a period of six months in some situations.

However, felony arrests are much more complicated because Florida guidelines and scoresheets may indicate that the judge should give jail or Florida prison time. If you or someone you care about has been arrested for a felony it's important to remember the the five best ways to avoid felony charges and not let a felony ruin your life. In domestic violence felony cases such as aggravated battery, aggravated assault, arson on a home or conveyance or assault with a deadly weapon the Florida sentencing guidelines and scoresheets will come into play driving up the possible sentencing ranges within which a judge must sentence unless your Clearwater criminal defense lawyer persuades the judge to accept and articulate for the record enumerated justifiable statutory reasons for going under the Florida sentencing guidelines.

It's always important to contact your Clearwater criminal defense lawyer as soon as possible if you've been arrested in Pinellas County, Florida so that the damage to your life and to your family and your employment opportunities from your arrest can be minimized and the best efforts made to get the best possible results possibly finding a way to dismiss or reduce the charges against you

Wednesday, November 16, 2016

HARD RIGHT SHIFT TO LAW & ORDER ALLOWS SPINELESS FLORIDA JUDGES TO GIVE HARSH SENTENCES

Even the toughest sentencing judges in Florida's vast array of federal and state courts seemed to mellow over the past few years as they accepted the fact that harsh sentencing especially for nonviolent offenses such as drugs, fraud or grand theft was abhorrent. As defense lawyers focused media attention to the devastated families and loved ones of defendants ruined by the criminal justice system it slowly became clear to society at large and even to law enforcement, prosecutors and judges that in daily use the harsh sentencing based on absurd sentencing guidelines and unfair minimum mandatory sentencing that often subverted justice and that they had gone too far in criminalizing nonviolent behavior with significant jail time. 

Judges could no longer effectively convince us that when they gave inhumane sentences that it was only because they lacked discretion under the sentencing guidelines. The most politically sensitive judges were the first to see that times had changed and were happy to receive more praise for more reasonable sentences. Soon others followed till a consensus developed for nuanced sentencing based on fairness, reasonableness and rehabilitation and giving a second chance thru the pretrial intervention program rather than retribution.

Those days of aspirations toward a Florida system of fair sentencing are about to end. The political climate for greater law and order will quickly turn the most spineless judges into mere adding machines pleasantly spitting math scores and spilling blood at sentencing. Eventually the zeal of long sentencing will sweep away any of the remaining reluctant judges until they're all giving minimum mandatory sentences that corrupt the very prosecutors and judges who pursue them with no apparent shame just as they were only a few years ago. Close your eyes as they waste another generation of lives thrown away for no purpose other than the fact that judges enjoy being judges. 

Tuesday, November 15, 2016

WILL FEDERAL MARIJUANA INVESTIGATIONS & ARRESTS NOW BECOME MORE OF A PRIORITY WITH TRUMP?

The federal government should no longer prioritize marijuana investigations and arrests in Florida now that voters have passed the Florida constitutional amendment allowing doctors to prescribe marijuana. In other parts of the country where the legality of marijuana within a state has been called into question either by complete legalization or by allowances for medical marijuana the federal government has faced a dilemma on how to proceed because cannabis is still technically outlawed federally. In other states the DEA, FBI and the United States Attorney's offices have deescalated investigations and arrests in marijuana cases in states that have taken direct action undermining marijuana legality.

Will this be true in Florida as well? Will possession of marijuana continue to be draw federal interest? It should be, because otherwise even state sanctioned marijuana growers would be subject to conspiracy to traffic in marijuana laws that draw minimum mandatory drug sentences with very limited discretion for judges to go under the harsh sentencing laws. One thing we do know with certainty is that the majority vote for a failed marijuana amendment a few years ago had no effect on federal prosecutor's zeal to prosecute Florida marijuana cases. Yet presidential politics may undermine the people's movement to make marijuana legal and readily available for those who need it.

Under the Obama administration the U.S. Attorney's offices were directed to give states some leeway on legalization of medical marijuana as well as recreational marijuana use. The new Trump "law and order" administration may seek to enforce federal marijuana laws even in states or perhaps especially in states that have softened on drugs. Many of these states happen to be in those sane parts of the country that voted heaviest against Trump perhaps making enthusiasm for harsh federal drug enforcement within the new administration more likely as political payback.

In Florida it's often difficult to avoid harsh penalties for possession of even small amounts of marijuana. Within six months we'll know if criminalizing those who use marijuana will become a federal goal with the sad result of ruining countless lives needlessly for a nonviolent crime. Federal marijuana indictments may increase rather than decrease despite the Florida vote for medical marijuana. If so, the fact that a supermajority of Florida voters passed medical marijuana will be as insignificant as the fact that over a million more people voted for Clinton to be president than voted for Trump. A madman's whims will dictate our course.

Tuesday, November 08, 2016

EXPOSURE TO VIOLENCE AS A CHILD FOR MITIGATION IN SENTENCING IN FLORIDA FEDERAL & STATE COURTS

It's believed that children exposed to high levels of violence are much more likely later in life to commit crime. Therefore it stands to reason that proof of exposure to violence as a child should be grounds for mitigation of criminal sentences. This is clearly true for a proper defense for any juvenile defendants who have been subjected to violence, sexual battery, sexual harassment, electronic harassment, bullying or any other act of inappropriate violence. But Defense lawyers should also use this information to the advantage of their adult clients to secure the best possible outcome in all Florida criminal courts (federal and state). So in evaluating your case it's important for your criminal defense lawyer to not only gather information on the charges you may be facing, but to have a clear understanding of every facet of your life and upbringing.

In Florida criminal courts and in the federal court in the Middle District of Florida reference can be made to the National Institute of Justice compendium of research on children exposed to violence, which as its name implies is a study of the most reliable recent research on effects and attributes of childhood violence. Not only does this study define in a broad way what may constitute violence in many situations, but it also discusses factors of risks and resilience, social bonds of violence, contexts of violence, teen dating violence, clusters of violence, school violence, familial violence and many physical and mental consequences of exposure to violence. So much so that even just writing about all this violence gives me a foreboding feeling of what may be lurking in the hallway as the lights flicker. 

Having this information at hand is important for any client who is a juvenile, but may also be significant for many adult clients who have been victimized or subjected to some type of violence as a child. Clearly the goal is to humanize your client. Good judges and fair prosecutors should be led into the story of your client so that they'll gain an actual interest not only in the facts of a particular case, but also in why the facts happened and how to make certain that any possible triggers for criminal behavior is resolved so that it never happens again. So no matter how old your client is now the compendium may be helpful in finding solid scientific support in persuading prosecutors to reduce felony charges to misdemeanors or as possible mitigation at the time of sentencing instead of merely relying on Florida sentencing guidelines and scoresheets.

Friday, November 04, 2016

HOW NEW FEDERAL SENTENCING GUIDELINES EFFECT CRIMINAL CASES IN THE MIDDLE DISTRICT OF FLORIDA

For all federal defendants and their criminal law attorneys it's important to note that the new 2016 guidelines are now in effect.   For all cases sentenced or after November 1, 2016, the Judge at sentencing should rely on the Probation Office Presentencing Report to apply the new guidelines.  

If the guidelines in your federal criminal case in the Middle District of Florida were more favorable at the time the crime was committed as defined in the indictment or arguably as delineated by the plea agreement or as found by the jury during the facts found at trial, then you may elect to be sentenced under the older, more favorable guidelines.  See USSG s. 1B1.11(b)(1).  But it's important to keep in mind that the Probation office will not likely bring this fact to your attention nor will the Probation Officer assigned to complete the Pre-sentencing Report in your case include the older guidelines in the unbiased report when it sends it to the sentencing judge. If the older guidelines are more favorable for your client then you must include a request to the court in your response to the PSR or (preferably) in your Sentencing Memorandum furnishing the judge with a timely request to apply the guidelines in effect at the time the offense occurred.

The Federal Guideline Sentencing Commission issued this notice of the new amendments to the Federal Sentencing Guidelines. 

Immigration Offenses
The Commission amended the alien smuggling guideline(§2L1.1):(1)to increase the enhancement for cases involving the smuggling of unaccompanied minors from 2 levels to 4 levels,broaden its scope to offense-based rather than defendant-based, and revise the meaning of an"unaccompanied minor";(2)to expand the definition of"minor"to include an individual under the age of 18;and(3)to clarify that the"serious bodily injury "enhancement applies to any alien smuggling case involving sexual abuse. 
The Commission revised the illegal reentry guideline(§2L1.2):(1)to provide tiered enhancements based on prior convictions for illegal reentry offenses and criminal conduct that occurred before and after a defendant was ordered deported;(2)to eliminate the use of the"categorical approach"for predicate felony convictions and make several adjustments to the scope of the enhancement; and (3)to exclude "stale"convictions by requiring that prior convictions be used only if they receive criminal history points. 
Child Pornography
The Commission revised §§2G2.1 and 2G2.2 to ensure the "sadistic or masochistic" enhancement applies when the offense involves infants or toddlers.
The Commission amended §§2G2.1,2G2.2,and 2G3.1 to provide that the 2-level enhancement for"generic" distribution applies if"the defendant knowingly engaged in distribution."
In §§2G2.2and 2G3.1,the Commission revised the 5-level enhancement for distribution not for pecuniary gain to clarify that the enhancement applies"if the defendant distributed in exchange for any valuable consideration."  
Conditions of Probation and Supervised Release
The Commission revised,clarified,and rearranged the conditions contained in §§5B1.3 and 5D1.3 in order to make them easier for defendants to understand and probation officers to enforce. 

As you can see the committee made a number of obvious changes to the Federal Guidelines. Yearly guideline changes rarely change how federal minimum mandatory sentences will play out at sentencing and did nothing to help this year. Yet it's vitally important to find the best Federal Sentencing Guidelines for your client's situation when the Guidelines can help. But it's also important to steer clear of arguments to the court about which guidelines should apply that may prove ineffective.

For example, it's possible for the practitioner to be tripped up by the "one book" rule.  See USSG 1B1.11(b)(2), see also Application Note 1. to the guideline.  This rule provides that the court cannot apply one guideline section from one edition of the guideline manual and another guideline section from a different edition of the guideline manual. In other words you can't pick and choose from different Federal Guideline years, but you want to make the most favorable decision as to which sentencing guidelines are most likely to give your client the best possible federal sentencing outcome even in tough sentencing cases such as drugs.