Wednesday, August 31, 2016


In a recent case the 1lth Federal Court of Appeals which overseas the Middle District of Florida in Tampa took the federal government to task for failing to abide by a Plea Agreement. The court found in a rare piece of good news in this part of the country that federal prosecutors knowingly violated the agreement by not giving credit for acceptance of responsibility, see U.S. v Hunter. Apparently even our self-righteous, overly conservative federal appeals court judges can take a rare turn toward justice having sniffed the changing political winds of their failed war on drugs. 

The case began as many of these drug cases do with a questionable traffic stop, this one for improper window tint. After smelling marijuana the joyous officers found marijuana, crack cocaine, powder cocaine and heroin and charged the defendant with four federal crimes of possession with intent to distribute marijuana, heroin, cocaine and crack cocaine for which our hapless defendant was indicted. All in all a glorious day to be an officer, to be a freedom loving American maybe not so much. 

A motion to the federal judge to dismiss the case and to suppress the drugs for the obviously spurious stop or for the nosey officer's inability to actually smell the odor of marijuana of course failed. No wonder so many federal defendants plead guilty refusing to have a federal criminal trial because they believe the game of federal justice is rigged

Here's one case where the court finally looked at the question of the blatant breach of a plea agreement by the government. The court began by defining what constitutes a breach of a plea agreement.
 “[A] plea agreement must be construed in light of the fact that it constitutes a waiver of substantial constitutional rights requiring that the defendant be adequately warned of the consequences of the plea.” United States v. Jefferies, 908 F.2d 1520, 1523 (11th Cir. 1990) (internal quotation marks omitted). “A material promise by the government, which induces a defendant to plead guilty, binds the government to that promise.” United States v. Thomas, 487 F.3d 1358, 1360 (11th Cir. 2007) (per curiam) (citing Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971)). Hence, the government breaches a plea agreement when it fails to perform the promises on which the plea was based...
… “Whether the government violated the agreement is judged according to the defendant’s reasonable understanding at the time he entered his plea.” United States v. Boatner, 966 F.2d 1575, 1578 (11th Cir. 1992).
The Court makes it clear that failing to perform as promised makes for an actionable breach. And that the promises of the government are held to the standard of the defendant's reasonable understanding of the plea agreement when he changed his plea to guilty. Federal plea agreements are notoriously one-sided, typically drafted by the government and having few benefits for defendants other than the possibility of 5K motions for substantial assistance to avoid minimum mandatory sentencing in complex drug cases and the three levels for acceptance of responsibility. Interestingly even without a finding of a breach the Florida Bar found a few years ago that federal waiver provisions in plea agreements were likely unethical. Let's face it, the entire federal justice system of forced pleas and sentencing is unjust and un-American.

Further the Court notes the following:
In exchange for Hunter’s promise to plead guilty to all four charges in his indictment, the government promised to recommend a reduction for acceptance of responsibility at sentencing. Yet, at sentencing, the government did not recommend the reduction. In fact, the government objected to and argued against Hunter receiving the reduction. Viewed objectively, “the government’s actions are inconsistent with what the defendant reasonably understood when he entered his guilty plea.”1 See Copeland, 381 F.3d at 1105...
 ...It is clear that Hunter reasonably understood the government would recommend the acceptance-of-responsibility reduction on his behalf at sentencing. The promise to recommend the reduction was a key material concession made by the government in the plea agreement.
 The court notes that although the government argues that the defendant gave false testimony at the suppression hearing, the change of plea as well as the signing of plea agreement occurred after the suppression hearing; therefore both parties were bound by the plea agreement's conditions and promises and the defendant should receive the three level of credit for acceptance of responsibility. 

Thursday, August 11, 2016


The grim statistics don't lie - a higher percentage of Americans are imprisoned than in any other country. And the highest rates of incarceration are in Southern states. Let's take a look at why Florida, which in many ways pretends to be a progressive Southern state, has a high incarceration rate. Here's the three ways people end up in jail in Florida and the best way to make sure that you don't stay in jail if you're arrested.

First, too many arrests in Florida are made in cases where a mere notice to appear would secure the appearance of the defendant at any future hearing. In Florida it's possible to be arrested for almost any crime no matter how insignificant. For example, someone accused of a crime against property such as burglary of a conveyance (such as a car with no occupants) or trespassing on private property often faces arrest in Florida while reasonable police in other places would not arrest unless the perpetrator committed a violent crime such as sexual battery, assault or domestic battery or the crime is aggravated such as burglary to a dwelling (breaking into homes) or the defendant is deemed a danger to the community or the accused is believed likely to abscond. 

Second, once people are arrested they often find it difficult to get out of jail. In fact people awaiting trial are often held for months in jails and prisons without having been convicted. Many of these people allegedly committed drug crimes, driving offenses or crimes against property such as theft. Prosecutors have no qualms about keeping people in jail as long as possible to force plea deals even though it subverts the criminal justice system.

Third, many of the cowardly elected and appointed judges in Florida are political opportunist who take an unnecessarily hard stance on nonviolent crimes. These judges don't believe in justice instead they believe that anything other than maximum sentences may ruin their judicial careers. It matters nothing to them the countless lives they ruin in the process.

The goal must be to persuade police to stop making needless arrests. Public pressure should be brought to bear against craven prosecutors and judges to force the release of nonviolent defendants before trial. Further, society should shame Judges such as Judge Susan Schaeffer who was obsessed with power and harsh sentencing into giving consistently fair sentencing rather than mindless harsh sentencing for those convicted of crimes. 

Until this happens finding a criminal defense lawyer who will fight to obtain for you or those you care about the best possible results after an arrest, to persuade your judge to give a reasonable bond and to have your charges reduced or dismissed is crucial.

Monday, August 08, 2016


What we need in Florida are laws that protect citizens from over arrests in the same manner that our fisheries are protected from overfishing. Is that too much to ask? To any reasonable person the police should give the highest priority to investigating violent crimes, next to investigating property crimes and finally to investigating crimes where there is no victim such as drug crimes. Officers should be given incentives to catch big fish not small ones. 

Right now against all logic nonviolent drug cases provide incentives for officers that are skewed toward investigation and arrests. Officers who want to be promoted investigate drug crimes.
In Pinellas County and throughout the State of Florida the war on drugs is still a high priority for law enforcement despite the fact that possession or sale of drugs are nonviolent crimes. Reasonable expectations would indicate that police resources could be better utilized in investigation, prevention and reduction of violent crimes. Yet police departments and prosecutors continue to churn out prosecutions of low-level, nonviolent drug offenders such as those who merely sell or possess marijuana or commit prescription fraud violations.

Part of the reason for the continued push for finding and arresting nonviolent personal drug use is that many of the police chiefs and other leaders of local police agencies came of age in their professions when the war on drugs was in full bloom. They regard any drug use as morally and legally indefensible to the point that law Clearwater law enforcement even used fake subpoenas to obtain evidence in drug cases. They believe that any drug use leads inevitably to the use of other harder drugs. Many agencies have long-standing policies of specific quotas for drug arrests. When the numbers of arrests go down, officers are told to look deeper, investigate harder and to find the drugs, because by God, those drugs are there. Naturally the result is that more drugs arrests are made, but those investigated and prosecuted are of less significance as the net for taking the catch grows larger and larger. The shame of this is that there is now harsh federal drug sentencing even for cancer patients.

One solution for stopping the overfishing of fellow citizens by police is to only allow investigations and prosecutions for drug weights that are now categorized as felony amounts. All the others could be thrown back into the sea of humanity until they grow large enough to be regarded as a fair catch worthy of the time and effort to reel them in.

Friday, August 05, 2016


Wouldn't you know it - the fact that Floridians overwhelmingly voted for medical marijuana has not stopped the feds from vigorous pursuit of marijuana cases in the Middle District of Florida. A couple of years ago more than 58% of voters supported a failed constitutional amendment for medical marijuana in Florida, just under the 60% threshold for passage. Recent polling indicates that medical marijuana is likely to surpass 60% to become the law in Florida at the next election. Further, many local Florida jurisdictions such as Tampa and St. Petersburg are following Miami's example by decriminalizing small quantities of marijuana.

Yet these events seem to mean nothing to federal prosecutors. Instead of tamping down the number of federal marijuana indictments there's been an increase in cases over the past few years. Once these cases are in the federal system federal judges have very limited discretion in avoiding long minimum mandatory sentences from the antiquated federal sentencing guidelines. And it's difficult to avoid harsh penalties under Florida law even when the state of Florida prosecutes marijuana cases. More troubling is the fact that the federal government for the most part no longer pursues marijuana in other states that have either decriminalized marijuana possession or allowed for medical marijuana. 

How can it be fair that marijuana indictments have increased in the southern United States while in many other parts of the country marijuana prosecutions are a thing of the past? Clearly the federal law should no longer be applied anywhere if it's not being applied everywhere. The foundation of the criminal law is that it be fairly applied in an equal manner. 

One wonders if the real cause of increased marijuana enforcement is a lack of other available productive work for the DEA. As arrests and indictments for hard drugs such as cocaine and methamphetamine have shriveled could it be that DEA agents as well as prosecutors simply do not have enough to do? It's frightening to contemplate the very real possibility that drug investigations, arrests and indictments are not based on targeting actual threats to the public. Once medical marijuana is legalized what will nosey officers smelling marijuana without a search warrant do then? Will cough medicine be next on their list?