Wednesday, March 22, 2017

SIGNIFICANT VERDICT IN SYNTHETIC MARIJUANA CASE OPENS DOOR TO DEFENSE LAWYERS FOR FUTURE WINS

A number of over zealously prosecuted synthetic marijuana drug cases brought by the Justice Department based on faulty laboratory and DNA evidence are finally being undermined with expert testimony from the combined efforts of federal defense lawyers around the country. By working together attorneys were able to anticipate the best argument that federal prosecutors would make in trial and effectively rebut them with experts. 
A sympathetic
Synthetic Marijuana Producer

Some cases are won at trial, but most victories are the result of very hard work before trial. The defense team in this case looked at over 1,100 federal designer drug cases and logged the accumulated evidence of every DEA agent and expert who testified in those cases. As one would expect our federal government over-reached going well beyond current scientific knowledge and even giving jurors contradictory evidence to win convictions where necessary in many of those cases. 

Congratulations to the lawyers for their fine victory and let's thank them for making their trove of information in these cases available to all of us (see below for information on how to access it). Here's a summary from Zay Thompson the lead investigator on the case who also deserves a lot of credit for the two not guilty verdicts in these drug cases based on his hard work.

On behalf of lead attorney Branden Bell and the rest of the defense team, I am very happy to announce that we won an acquittal for our client Craig Broombaugh and his co-defendant Terrie Adams who were charged with one count of Conspiracy to Possess With Intent to Distribute Controlled Substances and Controlled Substance Analogues and one count of Mail Fraud. The chemicals in question were synthetic cannabinoids, substituted cathinones, and miscellaneous designer psychedelics. Both co-defendants worked for The Outer Edge, a large distributor of these substances.

Our client's nightmare began when the DEA raided The Outer Edge in 2012 and intensified when he was indicted in 2014. The prosecutor tried to pressure him to plead guilty by alleging a user of these products suffered serious bodily injury (20 year mandatory minimum). All the other co-defendants pled, including the company co-owners.

We're sharing this win, not just to celebrate an extremely rare win in this area of the law, but also to contribute to the body of defense knowledge in these cases and from which we benefitted. This victory would not be possible without:
 
  • The fierce defense in the Ilan Fedida/Timothy Hummel case in Florida that first identified an initial group of scientists to push back on the DEA science of convenience and uncovered DEA Chemist Arthur Berrier's dissenting opinion.
  • The many attempts around the country to bring in Arthur Berrier to testify that were instructive in shaping our successful attempt. We intend to move to unseal and order transcripts of his testimony and that of his supervisor Jeffrey Comparin. 
  • The folks who got James Felman and Dr. Gregory Dudley to present "Litigating Synthetic Drug Cases" at the National Seminar for Federal Defenders in 2014. 
  • The Ira Stockton Daubert hearing victory in New Mexico that caused our judge to order a second Daubert hearing so that the DEA scientists could testify (He did not require the government to bring their scientists to the first hearing so only our experts testified then). Our judge ruled that the DEA pharmacologist could only testify about stimulant. hallucinogenic, or depressant effects on the human central nervous system. 
  • The 10 Circuit opinion in the Iqbal Makkar case of out of Oklahoma and the Texas District Court ruling in the Barry Bays case that limited the DEA pharmacologist's use of scary (but irrelevant) reports of injuries and overdoses as evidence of these substances' alleged stimulant, depressant, or hallucinogenic effects.
  • The Stephen McFadden Supreme Court opinion and, again, the 10th Circuit Makkar opinion that allowed us to present the defense that our client was an employee who thought was he was doing was legal because he was constantly told this by both his employers and their attorneys. 
  • All of you who have mounted Daubert challenges, tried to limine out prejudicial Government evidence, pounded on the DEA & DOJ's bureaucratic brick wall, and slogged through the difficult work of grasping the science with the experts and helping them translate that science into lay language, leaving behind a rich record on PACER.

During the course of this case, we've surveyed over 1100 federal designer drug cases and recorded information like disposition and drugs & experts involved. This spreadsheet is stored in a Box account administered by the AO. Also in that account are folders for every DEA and defense expert we've found associated with these cases. Their folders hold their reports, transcripts, and motions relevant to them. It is our hope that the wider defense community can also benefit from our hours of research, that it can be added to, and that more victories will occur in this extremely difficult area of federal criminal defense.. If you would like access to this information or have information to add, please email
Zay_Thompson@fd.org 


By freely giving us an opportunity to use the information accumulated during the defense of their client this excellent federal criminal drug case victory opens the door to future Middle District of Florida victories in federal and state criminal courts and throughout the country. 

Thursday, March 09, 2017

STUNNING NEW MEMO FROM FEDS SETS HIGH FEDERAL ARREST GOALS FOR STATE & LOCAL CRIMINAL CONDUCT

In a stunning new memorandum from the Justice Department, the Attorney General is directing every federal prosecutor to take criminal cases from state and local authorities so that longer federal sentences can be given. You can expect that state and local crimes will become federalized with ever greater arrests, investigations and imprisonment for more American citizens.

Let's find more people for our overcrowded prisons
Portrait of James Ensor, 1907
The National Sentencing Resource Counsel describes the new policies for making more state crimes into federal arrests in the following way:
Directing all US Prosecutors to work with local counterparts to identify those "criminals" in their districts responsible for violent crime, and prosecute them federally, using "all available tools," including 924(c), Hobbs Act, etc., but the drug statutes might work even better (i.e., require higher sentences) to "dismantle" drug organizations, which "can" drive down violent crime.  Further guidance, including an "updated memo on charging for all criminal cases will be forthcoming."  There go the previous Attorney General Holder's policies. 

The reason for all this?  The murder rate has increased by "10.8 percent." 
Actually, the murder rate per 100,000 increased from 4.5 to 4.9 from 2014 to 2015, which is an 8.9 percent increase, concentrated in a few cities like Chicago, Baltimore, St. Louis which incidentally have a history of police abuses (which he is not going to monitor anymore).  And, as you know, very few murders are federal crimes.  

And, FBI’s UCR reports a 14.6 % decrease in all violent and property crime combined from 2014 to 2015, along with 8.4 % decrease in the imprisonment rate.  Pew, National Imprisonment and Crime Rates Continue to Fall at 2 (Dec. 2016).
I've linked the complete new memorandum from the Attorney General so the reader can form his or her own conclusions. The goal here is to federalize state criminal conduct with heftier prison sentences and to do it in a systematic way that will result in longer prison terms. Although the memorandum attempts to take cover behind the term "violent criminals" our federal law has presumes that many drug cases are inherently dangerous to society as justification for already absurdly harsh drug sentencing. This memorandum if followed will not take violent criminals off the street so much as purposely ruin more lives by needlessly giving longer federal sentences for many crimes, such as sale or possession of oxycodone, xanax, methamphetamine, heroin, cocaine or marijuana that our not violent crimes.

Our previous Attorney General set lofty goals to arrest, investigate and jail fewer Americans believing that two million people imprisoned in the United States was far too many. As part of an ongoing effort to reduce harsh federal sentencing in drug cases the federal government told federal prosecutors to no longer enforce federal marijuana laws in states where pot was legalized which led to our hope that Florida's new legalization for medical marijuana would lead to some reduction of federal marijuana trafficking, sale and possession investigations and arrests. 

Federal District Judges used their new discretion unchained from the prosecutor's yolk of ever greater demands for harsh sentences by granting lower drug sentences not only thru substantial assistance, safety valve applications and defendant co-operation, but through up front guideline level reductions. All of this was good news until this new administration came into office with an agenda that some predicted would create many new Florida arrests and investigations not only for drugs but for many other nonviolent crimes. 




Wednesday, March 08, 2017

NEW STUDIES SHOW SEX OFFENDERS ARE LOW RISK TO COMMIT NEW CRIMES: HARSH SENTENCING UNHELPFUL

The U.S. Supreme Court misstated prevailing scientific evidence that sex offenders had very high recidivism rates that is "frightening and high" in a 2003 Court opinion which has been used to justify extremely harsh sentences not only by the high court but by "more than a hundred lower court opinions" since then even as new studies establish that sex offenders in actuality have lower rates of new criminal conduct. What does this say about our justice system, our sense of fairness and our respect for the law? 
Supreme Court Judges
Stoking Public Hysteria & Mob Rule 

The Supreme Court was looking for ways to justify harsh sentencing in these often tragic sex battery cases and child pornography cases because at the time they were high profile criminal acts engulfed with significant public hysteria. Rather than serve as a bulwark against the mob's rush for brutal, harsh and unfair sentencing our Supreme Court yielded to the rabble's ugliest desires by framing its ruling with unproven, non-scientific evidence. Justification for severe sentences in these cases as in other cases must be found from more than the mere charged offense, but as in other crimes no matter how heinous based on the collisions of facts, circumstances, defendant's prior record, possibilities for defendant rehabilitation and victim input for each individual case. 

All too often in these sexual offender cases there's actually less evidence needed to win convictions because of the nature of the case such as proving child pornography without proof of outlawed imagesYet this court joined the mob mentality. And like a mob's base decision to act first and act fast with fact to be found later, the Supreme Court's sentencing justification weakens with time. American courts and American law should never bend to the public's changing moods. As the morality of our culture further deteriorates will our Supreme Court simply hobble with the crowd on important issues of sentencing fairness by giving tough sentences when the crowd screams for more and light ones as the crowd no longer cares?

The Supreme Court and the other courts that followed need to come clean and correct the myth of sex offender recidivism that they falsely helped create and perpetuate. 

Monday, March 06, 2017

HOW FELONY & MISDEMEANOR CRIMINAL CHARGES ARE DISMISSED WITH A PRETRIAL INTERVENTION PROGRAM

The best resolution of any criminal case is for the charges to be dismissed. This can happen in any number of ways but one of the easiest for any defendant who does not want to have a criminal record is to enter and then successfully complete a pretrial intervention program. This program is only available in Florida for state arrests. Unfortunately there is no pretrial intervention program for federal criminal arrests that occur in Florida.

The program is not offered on every felony or misdemeanor, but in many cases it may be an effective way to get a case dismissed with prejudice (meaning that the State Attorney's Office may not refile the case against the Defendant any time in the future). In the five most effective ways to have criminal charges dismissed in Florida I gave the following account of the program:

Pretrial Intervention Program:
Charge is Dismissed with no Jail
A defendant with no criminal record charged with a crime may under certain conditions enter a special Pretrial Intervention Program upon the completion of which the case will be dismissed. The program entails a period of something similar to probation for six months to a year depending on whether the charge was a misdemeanor or felony.
Although in Florida this program is under the supervision of the State Attorney's Office, the prosecutors will ask the presiding Judge to dismiss criminal charges against those who successfully complete the program. There are also similar special programs for select crimes such as drug crimes or domestic battery charges as well as well as the recently added special courts for veterans in some counties in Florida.
Getting into the program requires the Defendant to fill out an application honestly stating his or her previous arrest record and convictions. The state attorney's office will run the a criminal background check so being forthright about any convictions or arrests is important since the program is open for first time offenders only. 

Further, the investigating officer as well as the victim must agree to allowing the Defendant to be in the program. Typically the program also includes special conditions for each type of crime. For example, in a domestic battery criminal case completing an anger management course will be required; whereas in a grand theft or worthless check case proof of the completion of an accounting course may be needed. Often a letter of apology must be written.

The purpose of the program is to allow non-repeat offenders who are basically good people to avoid a debilitating criminal conviction that could permanently affect their reputations in the community, their ability to hold down a job or feed their families.

Wednesday, March 01, 2017

FLORIDA MAY REQUIRE POLICE TO RECORD LAW ENFORCEMENT INTERROGATIONS ON ALL FELONIES

Right now in Florida when a law enforcement officer faces an internal disciplinary investigation or hearing he has the right to demand that the entire hearing be recorded. Yet that same officer while investigating a possible crime need not record any interrogations with a criminal suspect. Kind of interesting that officers value their own rights when their jobs may be at stake more than the rights of Floridians one reason why as a rule a suspect should not make a statement to police investigating a crime.

ABBEY ROAD STUDIO
FOR TIMELESS INTERROGATIONS
Let's get something straight all interrogations and interviews between law enforcement officers and anyone under investigation should be recorded. Only officers who intentionally want to hide evidence would ever fail to record conversations. Instead of recordings what we often get in Florida criminal courtrooms is a travesty of justice. An officer testifies to what he or she remembers a defendant may have said months earlier without any verification. It's not unusual for officers to give conflicting reasons as to why no recordings of interview are made.

Officers say they don't want to intimidate a defendant with a recording device though the fact that the officer is armed and may be intimidating with his firearm is apparently fine. Officers habitually state that there was no need to record a defendant's statement since another officer was in the room taking notes, the bias of that officer unquestionable. 

Officers contend that no recordings are needed because they have no reason to lie about what the defendant says when in fact officers are often biased and have even been proven to have perjured themselves while testifying. One former DEA agent was even sent to prison after demanding $700,000 from the family of a drug trafficker he'd arrested. Would his statements as to admissions in interrogations from the drug trafficker be unbiased, fair and impartial?

But officers don't like us to know the truth. And one of those truths is that in our flawed Florida criminal justice system cops often obtain false confessions by telling lies and giving false information during interrogations. And that law enforcement officers do not have to tell the truth when questioning suspects about a crime. By allowing these base prevarications judges and prosecutors shouldn't be surprised when other lies leak into the system to the point that confessions can't be relied on unless they're recorded.

Clearly, recording the complete and unedited conversations of investigating law enforcement officers not only keeps the officers honest but presents an accurate portrayal of what happened during the interrogation and why it happened. It also makes the case stronger against the defendant if it's clear that any statements made were made freely and voluntarily.

Although Florida lawmakers may soon change the law to require police in felony cases to record all interviews with Defendants, it's not enough to protect the rights of Floridians. Clearly all suspects for any criminal activity felony or misdemeanor should be recorded for timeless evidence of what was said. But take a defense lawyer's advice and remember that you don't need to ever make a statement to an officer.

Tuesday, February 28, 2017

HOW FEDERAL SAFETY VALVE CAN VOID A MANDATORY MINIMUM SENTENCE EVEN AFTER A FEDERAL TRIAL

One of the few ways to avoid a mandatory minimum sentences in nonviolent federal drug cases is by invoking the safety valve provision. The safety valve is useful way for any defendant to avoid a harsh sentence under the federal sentencing guidelines if he does not have any prior criminal convictions and if he fulfills an obligation to be debriefed by the DEA or FBI before he is sentenced.

Recently a Florida federal criminal defense attorney sent the following email:

Federal Judge slowly opens Safety Valve
What do I need to do to make certain of getting safety valve after a trial?  I have a drug conspiracy trial set and my client is safety valve eligible, I want to make sure I don't do anything to invalidate his eligibility at jury trial so that if we lose the trafficking in cocaine case the judge will still not sentence my client to the mandatory minimum prison term.
Other than making sure the jury does not convict his client what should he do to make sure that his client's eligibility for the safety valve is not compromised.

Under the Federal Sentencing Guidelines section 5C1.2  and federal caselaw the defendant must provide full and truthful disclosure no later than the time of sentencing. 
Not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant had concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
Usually sentencing after a federal conviction at trial will occur about three months later unless there are good reasons for the District Judge to continue the sentencing. Sometimes the government agents and federal prosecutors involved with the case will make it difficult to schedule the debriefing meeting possibly because they're miffed that the defendant chose to exercise his right to a jury trial. If that's the case a motion should be filed with the judge asking that the court order the agents to attend the defendant's proffer at a set time and date under threat of being held in contempt. 

But is a mere proffer completed before sentencing enough? No, it isn't. To get the safety valve provision the sentencing guidelines clearly call for the defendant to come clean in a complete and truthful way in the proffer to persuade the sentencing judge that the defendant has been honest. (see US v. Brownlee, 204 F.3d 1302)

We live in an era of prison over-incarceration because federal and state judges no longer have sentencing discretion in nonviolent drug crimes. Anytime the safety valve can be used to avoid a mandatory minimum the judge becomes a free agent who can finally give a much fairer sentence to the defendant.