Wednesday, March 09, 2016


When confronted with a federal investigation it's vitally important for defense lawyers and their clients to fully understand the various factors used by prosecutors in making indictment decisions. Not every case referred to federal prosecutors finds it's way to the grand jury. There is in fact a natural process of deliberation, decision making and evidence gathering based on each district's prosecutorial priorities. Each district is guided not only by the prevailing priorities of the federal government but by local priorities.

Grand Jurors
Deliberating in The Middle District of Florida
In the Middle District of Florida the decision making process for seeking indictments is short circuited, by which I mean the process almost always leads to the seeking of indictments no matter how soft or hard the quality of evidence, in certain types of cases. There are four types of cases prioritized to the extent that there's very limited prosecutorial discretion in taking the case to the grand jury for an indictment. These are Trafficking in Drugs, Identity Theft with tax refund fraud, child pornography and firearm violations. Each of these cases arrive at a prosecutor's desk amped up, glowing and especially weighted toward seeking the harshest possible indictable offense with the longest sentences. 

America's war on drugs means that trafficking in drugs is both a local and national priority especially in that the Middle District of Florida is designated as one of the few venues for trials of the Central American drug war involving the United States Coast Guard taking down of go-fast vessels and drug carrying submarines with huge quantities of cocaine. Identity Theft is a local priority because it's so rampant in the Tampa Bay Area that even local law enforcement agents who used driver's license information for identity theft have been indicted. Child pornography and firearm violations are national federal priorities. 

In essence there is much less ability for the defense to influence indictment decisions in these four types of cases, because the prosecutor will have limited discretion. Further, in these four groups the FBI, ATF or DEA agent will be more knowledgeable as to strengths and weaknesses of each case than the assigned prosecutor. 

Other cases will gain or lose urgency based on the significance of the alleged crime, any possible threat to the community and media exposure. In these cases only the statute of limitations or staleness of evidence limit a prosecutor's ability to more thoroughly investigate possible criminal conduct before seeking an indictment.

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