Because over 96% of federal defendants are forced to plead guilty what should a federal defendant do when confronted with issues that should be litigated? For example, what if there's been an unlawful search by FBI or DEA agents the fruits of which are being unlawfully used by federal prosecutors to pursue a guilty plea? If the Defense counsel files a Motion to Suppress because the defendant did the smart thing by following this Blog's advice in not giving consent to search his home or car, will the Federal District Judge later retaliate at sentencing by giving the defendant a lengthier time in Federal prison?
Here is a recently received email exchange from a federal criminal defense lawyer in the Miami Division of the Southern District of Florida with other lawyers in the Middle District and the Northern District of Florida about whether local federal judges are apt to deny a three level reduction for acceptance of responsibility where a motion to suppress has been litigated:
Has anyone gotten a downward adjustment at sentencing for acceptance of responsibility when the defendant filed and litigated a motion to suppress that was denied and then entered a guilty plea?
I know it's a long shot!
In the Orlando Division, we almost always get acceptance of responsibility under such a scenario. If we want to preserve the suppression issue for appeal, the government usually will not agree to a conditional plea.
They usually will agree to a bench trial with stipulated facts to preserve the suppression issue. Even in those cases, we usually will get all three points for acceptance.From the Jacksonville Division in the Northern District of Florida a federal criminal defense lawyer responds as follows:
Not always - depends.
Depends on the AUSA (Assistant United States Attorney), the PO (Probation Officer), how good your mtn to suppress was, how the judge feels ...
Same here in Tampa. They always start out "threatening" to not move for the 3rd level but only follow through with that when they feel the motion was "frivolous" - some Judges here will vary the extra level to make up the difference.