Thursday, August 27, 2015


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. 

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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


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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.