Wednesday, January 25, 2017


The community of defense lawyers who have extensive federal criminal law experience in Florida is not large. The united band of attorneys often face long odds against the mighty power of the Federal government's criminal justice system and gain strength by working together and sharing important information concerning how federal judges and prosecutors handle various issues. One issue that's often discussed among defense lawyers is the minutiae of how each federal judge currently handles unusual sentencing issues. This is true because the vast majority of federal defendants are forced into pleading guilty, many refusing to have federal jury trials believing the game is rigged to convict in the federal system.

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! 
From Orlando part of the Middle District of Florida a federal criminal defense lawyer responds as follows:
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 ...

And from the Tampa Division, in the Middle District of Florida an attorney also responds as follows:

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.

As you can see the how Florida federal criminal cases proceed thru the federal criminal justice system varies depending on which District and Division from which your case is being handled. In the Middle District of Florida it's not unusual to have federal prosecutors threaten that one or more levels may be denied at sentencing in an effort to shore up even the weakest federal criminal case.

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