Thursday, August 27, 2015

BEST EARLY RELEASE STRATEGY IN FEDERAL CRIMINAL SENTENCING IN THE MIDDLE DISTRICT OF FLORIDA


After the initial sentencing in federal court it is still possible to secure a second sentencing to obtain a better sentence under Rule 35. This is true even if your client has already received a lower sentence under the 5K provision for co-operation. Typically in the Middle District of Florida the Government will not file for a Rule 35 sentencing departure unless there has been extraordinary work from the defendant on the Government's behalf. 

A typical example of extraordinary co-operation after conviction and sentencing for a federal crime would be the giving of testimony to a grand jury or federal trial jury against a fellow co-conspirator in a complex criminal case that results in an indictment or a conviction of a federal crime. In one significant federal criminal case in the Middle District of Florida that I handled a defendant was well rewarded by prosecutors after he lured a co-conspirator from a country without an extradition treaty with the United States to a country with an extradition treaty. 

Image result for days of wine and roses
Federal Prison Drug Program for early release?
Another significant way to reduce the release date after sentencing is for the defendant to successfully complete the federal drug program while in federal custody. Typically there is a long waiting list for acceptance into the program. The federal inmate drug program itself includes classes that must be taken over the course of about eighteen months or so while in custody. The benefit is an entire year early of the sentenced release date. 

Unfortunately, because of the time it takes to complete the course and the waiting list, the beneficiaries of this federal prison program tend to be those defendants convicted of drug trafficking cases. Also, the program is open only to those federal prisoners who have established a drug problem with addictive behavior at sentencing or thru the Pre-sentencing Report. All too often defendants will mischaracterize and minimize their addiction problems to the probation officer assigned to conduct and complete the Pre-sentencing Report (PSR) with the result that the Bureau of Prisons (BOP) as directed by federal law will not grant access to the drug treatment program.

If the PSR does not reference any addictive behavior that can be proven, then the initial sentencing should include evidence to the federal district judge of addiction thru the testimony of the defendant, family, friends, psychiatrist or therapist for the judge to make an informed finding on the record that the addiction exists and recommend the drug program. It's also important to formally request that the judge amend the PSR to include the reference to the formal finding of addiction. Otherwise the BOP may not have ready access to the judge's decision that overruled the probation officer's assessment in the PSR.

These examples show that it's necessary to have an effective strategy before the initial sentencing which successfully will lay the groundwork for either a more beneficial second sentencing or early release thru Bureau of Prisons programs. Because the vast majority of federal defendants are forced to plead guilty, effective defense lawyers should plan early release strategies within and outside the federal sentencing guidelines well before sentencing in federal criminal in the Middle District of Florida in Tampa. 

Monday, August 03, 2015

PINELLAS POLICE ADMIT INCOMPETENCE & FAILURES OF COLLECTION, STORAGE & ANALYSIS OF EVIDENCE

Image result for st petersburg police department
Integrity, Fidelity & Faulty Evidence

The St. Petersburg Police Department has cut a deal to pay the far better trained and equiped Pinellas County Sheriff's Department (PCSO) for help in collecting, storing and analyzing evidence gathered at crime scenes. Even when evidence was properly collected the police department no longer had room to properly store the evidence possibly tainting the forensic laboratory work. Oddly the cash agreement only involves "significant criminal cases" such as sexual battery, aggravated battery, burglary, firearm cases, murder, DUI manslaughter and child pornography. 

The problem with this reasoning by the St. Petersburg Police Department (SPPD) is that every allegation of criminal misconduct is very significant to the person whose life, property and reputation are at risk. That allegation of grand theft or even petty theft case can still ruin someone's life. As a fundamental right of justice every defendant within Pinellas County should always have access to only the very best possible collection, storage and analysis of all the evidence in his or her case. Yet the reliability of Tampa Bay expert forensic testimony even in fingerprint cases has been in doubt for years.

In a deep moral sense the plea for help to PCSO is a commendable admission of failure that attempts to remedy past incompetence. The new Chief of Police is cleaning up the problems he inherited; problems he clearly did not cause. The police department should be lauded not attacked for it's new found honesty as to it's current inabilities. 

Yet one wonders how many times SPPD officers have taken the stand and testified under oath about evidence that was improperly seized, collected or tested. The act of asking for help from the Pinellas County Sheriff's Department begs the question of when exactly that help was needed. When did the SPPD find that the threshold of honest evidence was not met? Shouldn't a grand jury be convened to find out?

No wonder so many defendants refuse jury trials because they believe that the criminal justice is rigged to find them guilty. But what about those defendants already arrested or convicted by false or faulty forensics? Shouldn't doubtful cases dependent upon the St. Petersburg Police Department's admitted forensic failures be reopened? Shouldn't collected evidence be reexamined and reanalyzed by the more competent PCSO?

Prosecutors and the SPPD have a moral responsibility to dig deep, reviewing every trial, checking each conviction and rewinding any forced changes of plea to bring the facts to judges so that false charges are dismissed and those awaiting justice in prison are finally freed.

Monday, July 13, 2015

WILL POSSESSION OF THE ENTIRE 22 VOLUME OXFORD ENGLISH DICTIONARY MAKE ME A BETTER LAWYER?


Unfortunately in a moment of delusional optimism I happened upon a recent article filled with praise for the Oxford English Dictionary (2nd Edition, 1989, a mere 22 volumes). The writer noted that the dictionary was her favorite worldly possession. Not only more sobering than wine, but better by a wide margin than anything she's ever owned, including "books, paintings and drawings, souvenirs, jewels - shoes even."

Image result for oxford english dictionary 2nd edition
Reading Material for Court
Something about this struck a deep cord with me. For a week or so I wondered how owning this marvel might change my life. Would it make me a better person, a better American, and for any possible tax deduction, a better lawyer?

I'd wake up, make espresso and randomly draw forth a volume, reading a new word's history, usage, lineage and sit back savoring how I'd spring it on the next unsuspecting person I happened upon. If a lawyer, fine; if a judge, so much the better; if a juror, forget it. No doubt there are words in those fine books unfit for jurors or even other lawyers, but could there ever be a word unfit or unprofitable to spill in open court to win a judge's smile? 

Last Friday in Court in Clearwater while slumped in a juror's chair waiting for my client's important criminal case to be called, I was jolted awake when I heard a lawyer, nearly as regular looking as you or me, speaking with the lilt of a real British accent. Most of what he said seemed to be understandable to the judge, but there were unmistakable rumblings of mutual miscommunication that only knowledge from a true English dictionary laced with a steady diet of Downton Abbey and Sherlock Holmes could solve. All this was done while the lawyer performed an English dance with his client around the podium, like a scene from Pride and Prejudice, till the Bailiff put it to a stop.

All this makes me wonder. How would I manage to take all 22 volumes of the dictionary with me every time I go to court? Wouldn't it be better to squirrel away a volume or two in each of the courtrooms? Then I could focus on using a big word from the dictionary of whatever courtroom I happen to be in that day? Everyone would be amazed. I might even amaze myself. 

Yet more importantly, would possession and possible occasional use of the dictionary change my voice so that I sound like Sean Connery? But there are other questions. Would the words accumulating like raindrops in a birdbath overflow when I least expected it? Would some words escape, fly far away and never return? If so, how could I live without them?

These questions and hesitant answers are pushing me down the path toward actually buying the Oxford Dictionary, especially because this edition is to be the last one ever to be printed. The dictionary like most everything else is now online for your yearly payment. Wouldn't it be cheaper in the long run based on my life expectancy (let's think half full here) to buy a complete Oxford Dictionary and hope for the best? 

One hopes my use of the books won't be disrupted by future federal  criminal laws. Could Congress make it a federal crime to possess or distribute them? After all, the dictionary clearly contains words that are in fact representations of known unlawful drugs such as marijuana, cocaine and methamphetamine. Who knows what might happen if I read them. What if I read the word euphoria? 

I ordered the dictionary. I'll let you know how it goes, but in the meantime if you happen to get a call from Sean Connery, don't hang up, it's just me trying out some fancy words with my new accent.

Thursday, May 21, 2015

HOW TO REDUCE VALUATION OF GOODS IN FEDERAL CRIMINAL CASES FOR BETTER SENTENCING RESULTS

In many federal and Florida criminal cases the dollar amount of a scheme to defraud or theft becomes an important issue at sentencing. In the Middle District of Florida at the Tampa Federal Court many federal crimes are parsed by way of damage done. The federal sentencing guidelines determine economic damage based on dollar calculations. Sometimes these calculations call into question the sanity of the guidelines.
Clickhere for Julie's Lobster Gallery
An Innocent Florida Lobster of Great Value

A fellow lawyer sent me a question about how the federal government values lobsters that illustrates the absurdity of federal criminal law.
I have a question about the valuation of goods for purposes of calculating the sentencing guidelines. 
Defendant illegally harvested Florida spiny lobsters in the Florida Keys. Sold them to local seafood stores for $5.50 per pound. He was surveilled and videotaped while committing the illegal harvesting. He was arrested pursuant to the Lacey Act and pled guilty to a federal misdemeanor.
If lobsters are valued at $5.50 per pound the guidelines allow probation, but the PSR values the lobsters at around $24 a pound because there is a big market for them in Asia if they are shipped live to say, Hong Kong, for example.
The federal government is keeping the fishing boat (that’s punishment enough one would think).  At the higher value the guidelines call for incarcerationThe probation officer who wrote the Pre-sentencing Report refuses to disclose what source or information was used to value the lobsters at $24 per pound.Any suggestions?
Thanks
As you can see value in federal terms is all about dollars even when talking about the illegal harvesting of Florida lobsters. The absurd result of the probation officer's findings for lobster value are similar to what happens in federal criminal cases all of the time. FBI and DEA agents are notoriously off the mark when confronted on cross-examination with valuation issues in a wide variety of criminal cases involving the street value of drugs, the value of stolen property or actual monetary fraud loss.  

Perhaps the probation officer in the lobster case should also take into account currency fluctuations, the strength of the yen to the dollar and the financial disarray in the Eurozone. So how should value be determined? Doesn't the nearest local value make the most sense? Doesn't it matter what the Defendant thought the lobsters were worth when he sold them? We know what he thought they were worth, exactly what he was paid, $5 per pound. 

But for some probation officers and federal prosecutors that ready knowledge is not enough. Instead the value calculation includes added airfare and effort with the not inexpensive means to keep the lobsters alive all the way to Asia, which happens to be the most expensive market in the world. Clearly, an objection and Sentencing Memorandum should be filed detailing for the federal judge the ridiculous analysis of the Pre-sentencing report (PSR) and the need to not give preference to the prosecution in sentencing.

Thursday, May 07, 2015

FINDING FEDERAL SENTENCE REDUCTIONS BASED ON THE NEW DOJ STUDY OF PRISONS FILLED WITH OLD MEN


Yesterday, I finally received a late Pre-sentencing Report in a federal drug case from the probation office in Tampa. By law the Report must include, for the prosecutor's delight and the federal judge's perusal, the the cost of incarceration versus the cost of probation. As of yesterday the cost per year of federal incarceration is $29,291.62, whereas the cost of supervision by a probation officer is $3,162.03. 

shakespeare's falstaff performance - a man thought too old for prison
Why send Sir John Falstaff to Prison?
My client is accused of the significant but nonviolent federal crime of trafficking in cocaine. The punishment includes a minimum mandatory 10 year sentence. So the cost to imprison my client for the next 10 years will be at least $292,916.20 and this unreasonably assumes that the cost will not be greater a few years from now as my client ages. Many federal defendants face much longer sentences such as twenty-five year minimum mandatory sentences or life sentences. 

Think about those numbers. Think about the fact that the United States incarcerates a greater portion of it's population than any country on earth. How did this happen and what does it mean for our country? As these inmates age the financial impact becomes much greater forcing the federal Bureau of Prisons to become something closer to a nursing home of elderly prisoners.

A new DOJ study on aging inmates from it's own inspector general's office reinforces what we already knew - our American war on drugs is an abject failure not only for America but for the bureau of prisons. It turns out that thirty years of Federal minimum mandatory drug sentences have resulted in a prison population that is mostly populated by men over fifty years of age. Here is an excerpt from the report.
the Federal Bureau of Prisons (BOP) incarcerated 164,566 federal inmates in 119 BOP-managed institutions.1 According to BOP data, inmates age 50 and older were the fastest growing segment of its inmate population, increasing 25 percent from 24,857 in fiscal year

The OIG found that aging inmates are more costly to incarcerate than their younger counterparts due to increased medical needs. We further found that limited institution staff and inadequate staff training affect the BOP’s ability to address the needs of aging inmates. The physical infrastructure of BOP institutions also limits the availability of appropriate housing for aging inmates. Further, the BOP does not provide programming opportunities designed specifically to meet the needs of aging inmates. We also determined that aging inmates engage in fewer misconduct incidents while incarcerated and have a lower rate of re-arrest once released; however, BOP policies limit the number of aging inmates who can be considered for early release and, as a result, few are actually released early.
Those nonviolent drug users now need more medical care and other services that the BOP (Bureau of Prisons) can not possibly provide to an adequate level even if it spends more money.

For federal defense lawyers this study provides excellent arguments for requests to district judges at sentencing for sentence reductions and variances under the federal sentencing guidelines for older federal defendants. Clearly, the Justice Department now admits that Bureau of Prisons is incapable of handling the vast number of aged defendants yearly sent to federal prison. 

Isn't it finally time for the DOJ, federal judges and Congress to do something about these inhumane sentences?

Wednesday, March 18, 2015

AFTER YOUR ARREST, THEN YOUR FIRST HEARING DATE FOR CRIMINAL COURT IN CLEARWATER, FLORIDA

An old chevy used as a police car in Clearwater, Florida where the criminal justice system is as slow as the police cruiser pictured.
Justice slow but sure.
If you've just been arrested Tampa Bay the first thing to know is that the criminal justices system in Clearwater, Florida runs as slow as your uncle's old chevy with half a million miles. Florida's criminal justice system was not designed for speed though one might have hoped it would have been designed to provide justice. 


It doesn't matter if you're innocent or guilty, your trip thru the criminal courts of Florida will be numbingly time consuming, sapping your life energy, challenging your hopes and destroying your relationships. And all of this will happen even before your first court appearance. 

Be warned that the process of arrest for a criminal felony or misdemeanor is merely the beginning. Once you've paid bond or hired a bondsman usually for ten percent of the total bond, you'll be free to wait for six months or longer for your case to be resolved. 

The first hearing date you'll be given is the arraignment. If you hire a criminal defense lawyer, then you won't have to attend the arraignment because the paperwork the attorney files with the Pinellas Clerk of Court and sends to the prosecutor satisfies the conditions and requirements for that hearing. But after the arraignment there will be a new Pretrial scheduled at the judge's convenience every month. 

You'll need to plan on attending every pretrial conference while your case is pending. Yes, most judges understand that attending pretrials can become exhausting as well as problematical with pre-existing work and family obligations. But failing to attend a pretrial often results in the bond being revoked and an arrest warrant being issued. That's why it's very important to call your defense lawyer if for any reason you may not be able to attend a pretrial. 

So an arrest is just the beginning. Now the real work for your defense lawyer begins by persuading the prosecutor and judge during the early stages of the case that you are not just a case number and that you should be treated with fairness