Thursday, May 21, 2015


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?
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


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?