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.

No comments: