SETTING OUT TO FIND WHERE I'VE BEEN & LOOK TO BE

Readers of this Criminal Defense Blog set out to find me. I'd been gone for far too long. One rumor had it that I'd been kidnapped by renegade prosecutors then taken to an undisclosed location where I was forced to listen and critique their droning closing arguments over and over which if you think about it is the life experience of our federal judges, no wonder they're so jaded. Yet, if causing boredom in criminal jury trials counts as kidnapping we're all guilty of kidnapping those hapless jurors. 

Life in a wooded hide away.

Still others believed that having spent so much time writing about crime while defending those accused of various felonies that I'd used my knowledge of crime to successfully orchestrated a series of undetected criminal acts relying on flawed FBI analysis to take hedge fund cash into my swelling Swiss bank accounts. Oh, if only this were true! I'd buy each of you an espresso and as you'd squeeze the lemon and wait for it to cool ask about life in America.

Another wild internet meme had it that I never existed and that this blog you're reading was merely a myth. This one to my mind seemed most likely to be valid. As nothing is as impermanent as a blog except life; each moment gone forever till memory itself dissolves to nothing.

Finally a small group of dedicated readers set out to find me. They interviewed friends and members of my family. One said all in all I wasn't so much lost as simply not found. They searched my high school transcripts wondering how I'd gotten into college much less law school. Had there been foul play? Thru careful study of taxes paid and some avoided, clerk of court records and information gleaned from random scattered sand at drunken midnight seances at Clearwater Beach, they began to form a radical opinion - I could be found.

And when they came for me they found my small sheltered gazebo in the deep woods overlooking a brook that meanders out to Old Tampa Bay - immersed in beauty, lost in time I listen for the screech owl at the end of day.

SIGNIFICANT VERDICT IN SYNTHETIC MARIJUANA CASE OPENS DOOR TO DEFENSE LAWYERS FOR FUTURE WINS

A number of over zealously prosecuted synthetic marijuana drug cases brought by the Justice Department based on faulty laboratory and DNA evidence are finally being undermined with expert testimony from the combined efforts of federal defense lawyers around the country. By working together attorneys were able to anticipate the best argument that federal prosecutors would make in trial and effectively rebut them with experts. 

A sympathetic
Synthetic Marijuana Producer

Some cases are won at trial, but most victories are the result of very hard work before trial. The defense team in this case looked at over 1,100 federal designer drug cases and logged the accumulated evidence of every DEA agent and expert who testified in those cases. As one would expect our federal government over-reached going well beyond current scientific knowledge and even giving jurors contradictory evidence to win convictions where necessary in many of those cases. 

Congratulations to the lawyers for their fine victory and let's thank them for making their trove of information in these cases available to all of us (see below for information on how to access it). Here's a summary from Zay Thompson the lead investigator on the case who also deserves a lot of credit for the two not guilty verdicts in these drug cases based on his hard work.

On behalf of lead attorney Branden Bell and the rest of the defense team, I am very happy to announce that we won an acquittal for our client Craig Broombaugh and his co-defendant Terrie Adams who were charged with one count of Conspiracy to Possess With Intent to Distribute Controlled Substances and Controlled Substance Analogues and one count of Mail Fraud. The chemicals in question were synthetic cannabinoids, substituted cathinones, and miscellaneous designer psychedelics. Both co-defendants worked for The Outer Edge, a large distributor of these substances.

Our client's nightmare began when the DEA raided The Outer Edge in 2012 and intensified when he was indicted in 2014. The prosecutor tried to pressure him to plead guilty by alleging a user of these products suffered serious bodily injury (20 year mandatory minimum). All the other co-defendants pled, including the company co-owners.

We're sharing this win, not just to celebrate an extremely rare win in this area of the law, but also to contribute to the body of defense knowledge in these cases and from which we benefitted. This victory would not be possible without: 

• The fierce defense in the Ilan Fedida/Timothy Hummel case in Florida that first identified an initial group of scientists to push back on the DEA science of convenience and uncovered DEA Chemist Arthur Berrier's dissenting opinion.
• The many attempts around the country to bring in Arthur Berrier to testify that were instructive in shaping our successful attempt. We intend to move to unseal and order transcripts of his testimony and that of his supervisor Jeffrey Comparin. 
• The folks who got James Felman and Dr. Gregory Dudley to present "Litigating Synthetic Drug Cases" at the National Seminar for Federal Defenders in 2014. 
• The Ira Stockton Daubert hearing victory in New Mexico that caused our judge to order a second Daubert hearing so that the DEA scientists could testify (He did not require the government to bring their scientists to the first hearing so only our experts testified then). Our judge ruled that the DEA pharmacologist could only testify about stimulant. hallucinogenic, or depressant effects on the human central nervous system. 
• The 10 Circuit opinion in the Iqbal Makkar case of out of Oklahoma and the Texas District Court ruling in the Barry Bays case that limited the DEA pharmacologist's use of scary (but irrelevant) reports of injuries and overdoses as evidence of these substances' alleged stimulant, depressant, or hallucinogenic effects.
• The Stephen McFadden Supreme Court opinion and, again, the 10th Circuit Makkar opinion that allowed us to present the defense that our client was an employee who thought was he was doing was legal because he was constantly told this by both his employers and their attorneys. 
• All of you who have mounted Daubert challenges, tried to limine out prejudicial Government evidence, pounded on the DEA & DOJ's bureaucratic brick wall, and slogged through the difficult work of grasping the science with the experts and helping them translate that science into lay language, leaving behind a rich record on PACER.

During the course of this case, we've surveyed over 1100 federal designer drug cases and recorded information like disposition and drugs & experts involved. This spreadsheet is stored in a Box account administered by the AO. Also in that account are folders for every DEA and defense expert we've found associated with these cases. Their folders hold their reports, transcripts, and motions relevant to them. It is our hope that the wider defense community can also benefit from our hours of research, that it can be added to, and that more victories will occur in this extremely difficult area of federal criminal defense.. If you would like access to this information or have information to add, please email Zay_Thompson@fd.org 


By freely giving us an opportunity to use the information accumulated during the defense of their client this excellent federal criminal drug case victory opens the door to future Middle District of Florida victories in federal and state criminal courts and throughout the country. 

STUNNING NEW MEMO FROM FEDS SETS HIGH FEDERAL ARREST GOALS FOR STATE & LOCAL CRIMINAL CONDUCT

In a stunning new memorandum from the Justice Department, the Attorney General is directing every federal prosecutor to take criminal cases from state and local authorities so that longer federal sentences can be given. You can expect that state and local crimes will become federalized with ever greater arrests, investigations and imprisonment for more American citizens.

Let's find more people for our overcrowded prisons
Portrait of James Ensor, 1907

The National Sentencing Resource Counsel describes the new policies for making more state crimes into federal arrests in the following way:

Directing all US Prosecutors to work with local counterparts to identify those "criminals" in their districts responsible for violent crime, and prosecute them federally, using "all available tools," including 924(c), Hobbs Act, etc., but the drug statutes might work even better (i.e., require higher sentences) to "dismantle" drug organizations, which "can" drive down violent crime.  Further guidance, including an "updated memo on charging for all criminal cases will be forthcoming."  There go the previous Attorney General Holder's policies. 

The reason for all this?  The murder rate has increased by "10.8 percent." 
Actually, the murder rate per 100,000 increased from 4.5 to 4.9 from 2014 to 2015, which is an 8.9 percent increase, concentrated in a few cities like Chicago, Baltimore, St. Louis which incidentally have a history of police abuses (which he is not going to monitor anymore).  And, as you know, very few murders are federal crimes.  

And, FBI’s UCR reports a 14.6 % decrease in all violent and property crime combined from 2014 to 2015, along with 8.4 % decrease in the imprisonment rate.  Pew, National Imprisonment and Crime Rates Continue to Fall at 2 (Dec. 2016).

I've linked the complete new memorandum from the Attorney General so the reader can form his or her own conclusions. The goal here is to federalize state criminal conduct with heftier prison sentences and to do it in a systematic way that will result in longer prison terms. Although the memorandum attempts to take cover behind the term "violent criminals" our federal law has presumes that many drug cases are inherently dangerous to society as justification for already absurdly harsh drug sentencing. This memorandum if followed will not take violent criminals off the street so much as purposely ruin more lives by needlessly giving longer federal sentences for many crimes, such as sale or possession of oxycodone, xanax, methamphetamine, heroin, cocaine or marijuana that our not violent crimes.

Our previous Attorney General set lofty goals to arrest, investigate and jail fewer Americans believing that two million people imprisoned in the United States was far too many. As part of an ongoing effort to reduce harsh federal sentencing in drug cases the federal government told federal prosecutors to no longer enforce federal marijuana laws in states where pot was legalized which led to our hope that Florida's new legalization for medical marijuana would lead to some reduction of federal marijuana trafficking, sale and possession investigations and arrests. 

Federal District Judges used their new discretion unchained from the prosecutor's yolk of ever greater demands for harsh sentences by granting lower drug sentences not only thru substantial assistance, safety valve applications and defendant co-operation, but through up front guideline level reductions. All of this was good news until this new administration came into office with an agenda that some predicted would create many new Florida arrests and investigations not only for drugs but for many other nonviolent crimes. 

NEW STUDIES SHOW SEX OFFENDERS ARE LOW RISK TO COMMIT NEW CRIMES: HARSH SENTENCING UNHELPFUL

The U.S. Supreme Court misstated prevailing scientific evidence that sex offenders had very high recidivism rates that is "frightening and high" in a 2003 Court opinion which has been used to justify extremely harsh sentences not only by the high court but by "more than a hundred lower court opinions" since then even as new studies establish that sex offenders in actuality have lower rates of new criminal conduct. What does this say about our justice system, our sense of fairness and our respect for the law? 

Supreme Court Judges
Stoking Public Hysteria & Mob Rule 

The Supreme Court was looking for ways to justify harsh sentencing in these often tragic sex battery cases and child pornography cases because at the time they were high profile criminal acts engulfed with significant public hysteria. Rather than serve as a bulwark against the mob's rush for brutal, harsh and unfair sentencing our Supreme Court yielded to the rabble's ugliest desires by framing its ruling with unproven, non-scientific evidence. Justification for severe sentences in these cases as in other cases must be found from more than the mere charged offense, but as in other crimes no matter how heinous based on the collisions of facts, circumstances, defendant's prior record, possibilities for defendant rehabilitation and victim input for each individual case. 

All too often in these sexual offender cases there's actually less evidence needed to win convictions because of the nature of the case such as proving child pornography without proof of outlawed images. Yet this court joined the mob mentality. And like a mob's base decision to act first and act fast with fact to be found later, the Supreme Court's sentencing justification weakens with time. American courts and American law should never bend to the public's changing moods. As the morality of our culture further deteriorates will our Supreme Court simply hobble with the crowd on important issues of sentencing fairness by giving tough sentences when the crowd screams for more and light ones as the crowd no longer cares?

The Supreme Court and the other courts that followed need to come clean and correct the myth of sex offender recidivism that they falsely helped create and perpetuate. 

HOW FELONY & MISDEMEANOR CRIMINAL CHARGES ARE DISMISSED WITH A PRETRIAL INTERVENTION PROGRAM

The best resolution of any criminal case is for the charges to be dismissed. This can happen in any number of ways but one of the easiest for any defendant who does not want to have a criminal record is to enter and then successfully complete a pretrial intervention program. This program is only available in Florida for state arrests. Unfortunately there is no pretrial intervention program for federal criminal arrests that occur in Florida.

The program is not offered on every felony or misdemeanor, but in many cases it may be an effective way to get a case dismissed with prejudice (meaning that the State Attorney's Office may not refile the case against the Defendant any time in the future). In the five most effective ways to have criminal charges dismissed in Florida I gave the following account of the program:

Pretrial Intervention Program:
Charge is Dismissed with no Jail

A defendant with no criminal record charged with a crime may under certain conditions enter a special Pretrial Intervention Program upon the completion of which the case will be dismissed. The program entails a period of something similar to probation for six months to a year depending on whether the charge was a misdemeanor or felony.

Although in Florida this program is under the supervision of the State Attorney's Office, the prosecutors will ask the presiding Judge to dismiss criminal charges against those who successfully complete the program. There are also similar special programs for select crimes such as drug crimes or domestic battery charges as well as well as the recently added special courts for veterans in some counties in Florida.

Getting into the program requires the Defendant to fill out an application honestly stating his or her previous arrest record and convictions. The state attorney's office will run the a criminal background check so being forthright about any convictions or arrests is important since the program is open for first time offenders only. 

Further, the investigating officer as well as the victim must agree to allowing the Defendant to be in the program. Typically the program also includes special conditions for each type of crime. For example, in a domestic battery criminal case completing an anger management course will be required; whereas in a grand theft or worthless check case proof of the completion of an accounting course may be needed. Often a letter of apology must be written.

The purpose of the program is to allow non-repeat offenders who are basically good people to avoid a debilitating criminal conviction that could permanently affect their reputations in the community, their ability to hold down a job or feed their families.

FLORIDA MAY REQUIRE POLICE TO RECORD LAW ENFORCEMENT INTERROGATIONS ON ALL FELONIES

Right now in Florida when a law enforcement officer faces an internal disciplinary investigation or hearing he has the right to demand that the entire hearing be recorded. Yet that same officer while investigating a possible crime need not record any interrogations with a criminal suspect. Kind of interesting that officers value their own rights when their jobs may be at stake more than the rights of Floridians one reason why as a rule a suspect should not make a statement to police investigating a crime.

ABBEY ROAD STUDIO
FOR TIMELESS INTERROGATIONS

Let's get something straight all interrogations and interviews between law enforcement officers and anyone under investigation should be recorded. Only officers who intentionally want to hide evidence would ever fail to record conversations. Instead of recordings what we often get in Florida criminal courtrooms is a travesty of justice. An officer testifies to what he or she remembers a defendant may have said months earlier without any verification. It's not unusual for officers to give conflicting reasons as to why no recordings of interview are made.

Officers say they don't want to intimidate a defendant with a recording device though the fact that the officer is armed and may be intimidating with his firearm is apparently fine. Officers habitually state that there was no need to record a defendant's statement since another officer was in the room taking notes, the bias of that officer unquestionable. 

Officers contend that no recordings are needed because they have no reason to lie about what the defendant says when in fact officers are often biased and have even been proven to have perjured themselves while testifying. One former DEA agent was even sent to prison after demanding $700,000 from the family of a drug trafficker he'd arrested. Would his statements as to admissions in interrogations from the drug trafficker be unbiased, fair and impartial?

But officers don't like us to know the truth. And one of those truths is that in our flawed Florida criminal justice system cops often obtain false confessions by telling lies and giving false information during interrogations. And that law enforcement officers do not have to tell the truth when questioning suspects about a crime. By allowing these base prevarications judges and prosecutors shouldn't be surprised when other lies leak into the system to the point that confessions can't be relied on unless they're recorded.

Clearly, recording the complete and unedited conversations of investigating law enforcement officers not only keeps the officers honest but presents an accurate portrayal of what happened during the interrogation and why it happened. It also makes the case stronger against the defendant if it's clear that any statements made were made freely and voluntarily.

Although Florida lawmakers may soon change the law to require police in felony cases to record all interviews with Defendants, it's not enough to protect the rights of Floridians. Clearly all suspects for any criminal activity felony or misdemeanor should be recorded for timeless evidence of what was said. But take a defense lawyer's advice and remember that you don't need to ever make a statement to an officer.

HOW FEDERAL SAFETY VALVE CAN VOID A MANDATORY MINIMUM SENTENCE EVEN AFTER A FEDERAL TRIAL

One of the few ways to avoid a mandatory minimum sentences in nonviolent federal drug cases is by invoking the safety valve provision. The safety valve is useful way for any defendant to avoid a harsh sentence under the federal sentencing guidelines if he does not have any prior criminal convictions and if he fulfills an obligation to be debriefed by the DEA or FBI before he is sentenced.

Recently a Florida federal criminal defense attorney sent the following email:

Federal Judge slowly opens Safety Valve

What do I need to do to make certain of getting safety valve after a trial?  I have a drug conspiracy trial set and my client is safety valve eligible, I want to make sure I don't do anything to invalidate his eligibility at jury trial so that if we lose the trafficking in cocaine case the judge will still not sentence my client to the mandatory minimum prison term.

Other than making sure the jury does not convict his client what should he do to make sure that his client's eligibility for the safety valve is not compromised.

Under the Federal Sentencing Guidelines section 5C1.2  and federal caselaw the defendant must provide full and truthful disclosure no later than the time of sentencing. 

Not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant had concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.

Usually sentencing after a federal conviction at trial will occur about three months later unless there are good reasons for the District Judge to continue the sentencing. Sometimes the government agents and federal prosecutors involved with the case will make it difficult to schedule the debriefing meeting possibly because they're miffed that the defendant chose to exercise his right to a jury trial. If that's the case a motion should be filed with the judge asking that the court order the agents to attend the defendant's proffer at a set time and date under threat of being held in contempt. 

But is a mere proffer completed before sentencing enough? No, it isn't. To get the safety valve provision the sentencing guidelines clearly call for the defendant to come clean in a complete and truthful way in the proffer to persuade the sentencing judge that the defendant has been honest. (see US v. Brownlee, 204 F.3d 1302)

We live in an era of prison over-incarceration because federal and state judges no longer have sentencing discretion in nonviolent drug crimes. Anytime the safety valve can be used to avoid a mandatory minimum the judge becomes a free agent who can finally give a much fairer sentence to the defendant.

PUSH TO REDUCE FLORIDA'S MINIMUM MANDATORY SENTENCES FOR MANY NONVIOLENT DRUG CRIMES

Florida has 118 state crimes that trigger tough minimum mandatory sentences, which is close but not yet outdone by the 145 federal criminal laws that have harsh minimum mandatory sentences. Minimum mandatory sentences are an unfair punishment because they take away the sentencing judge's discretion to make the best sentencing decisions. This is especially true for the many Florida drug crimes that result in arrest such as possession of marijuana, cocaine, heroin, methamphetamine, oxycodone, prescription pain pills, prescription fraud, steroids, xanax, hydrocodone and codeine. 

More Discretion well fits your
Favorite Judge

Possession of only a small amount of any of these drugs can trigger a minimum mandatory term of many years imprisonment ruining the lives of not only the defendant, but his family, friends and loved ones. Drug charges are inherently nonviolent felonies that should not result in arrest or jail sentences. Even cases that involve the sale of drugs should not result in long prison sentences. Yet in Florida sale or possession of even the smallest quantities of illicit drugs can require judges to give harsh punishment of years of prison.

Recently a group of conservative and liberal Florida lawmakers unanimously agreed to send a prison diversion bill out of committee for a vote in the Senate. The goal of the bill is to end minimum mandatory sentences in Florida for nonviolent offenses and to give Florida judges the discretion they need to create fair sentences with better sentencing options.

As citizens we need to make our representatives understand that we want all of these state and federal unfair minimum mandatory sentencing laws changed. Nonviolent people our spending too much time needlessly imprisoned in Florida and throughout our country to the point that federal prisons wrongly hold thousands of prisoners beyond their release dates.

ONLY 1/4TH OF ALL FEDERAL DRUG TRAFFICKERS ARE REINCARCERATED AFTER SERVING THEIR PRISON TIME

Despite attempts to overlook bias for the goal of fair sentencing at least one federal judge has confessed to over-sentencing defendants to hundreds of years in prison. Most of the over-sentencing results from federal crimes where minimum mandatory sentences are applicable. Many of those crimes are drug related. The crimes are broken down by substance such as trafficking and conspiracy to traffick in marijuana, heroin, cocaine (powder versus crack) or methamphetamine. 

A new study by the sentencing commission on recidivism rates among federal drug trafficking offenders offers plenty of evidence that the sentences given by judges in these crimes is far too harsh. 

Bayer Bottle of Heroin
Cough Suppressant, 1910

Sentencing commission reviews are useful and important studies to leverage unique sentencing arguments. Here are some important facts found by the sentencing commission that lend support to arguments that the minimum mandatory prison terms set by federal statute for these crimes are far too harsh. These facts may also be used for mitigation arguments at sentencing to secure a below guidelines sentence if the federal guidelines call for a prison term above the minimum mandatory threshold. 

First, the reincarceration rate for federal drug traffickers is only 23.4% while just over half were rearrested for a crime. The most serious crime most likely to be arrested for was only a misdemeanor assault.

Second, those who did commit another crime after being released from federal prison did so at a median time of 25 months from release. This is a good argument for less actual imprisonment but more supervision upon release.

Third, age of the defendant is an important factor in risk of future crime. The older the defendant is at the time of release the less likely it is that he'll be arrested again.

Fourth, other than the age of a defendant the criminal history score is the most likely indicator of recidivism. This makes sense since the prior criminal acts of the defendant would tend to establish greater risk of association with future criminal activity.

The question of recidivism goes directly to a key issue in fair sentencing of whether the defendant has some likely predisposition to commit another crime after conviction and release from prison. The facts found in the new report can be useful in making arguments for reduction of sentences.

FEDERAL JUDGE LOOKS AT BIAS AND HIS GOAL OF FAIR SENTENCING AFTER DEFENDANT ALMOST SHOOTS HIM

Recently we looked at the musings of a retired federal judge who confessed that she over-sentenced defendants to hundreds of years in prison. Now let's look at how a Federal District Judge in Florida confronts his task of fair sentencing in a Duke Law School PDF, Who appointed me God?. 

Missing Winston Churchill

His goal of fair sentencing was made more difficult at least in regard to possible bias after a defendant he'd recently sentenced shot at him while the judge was sitting at home in his favorite chair with his wife a few feet away. Though the bullet missed, the judge could not quite stomach Winston Churchill's belief that "Nothing in life is so exhilarating as to be shot at without result."

While looking at his own possible bias he notes that his staff believes he seems to give female defendants more lenient sentences. He justifies this by noting that unlike most male defendants the women often represent the sole support for children and other dependants. 

In looking for a just punishment he examines the inherent conflicts that arise with giving cooperators substantial assistance and the fact that prosecutors too often control the process since the judge can not give credit for cooperation unless the federal prosecutor files a motion for substantial assistance. Further, the judge notes that he tries to avoid randomness in sentencing so cases are consistently sentenced over a wide range of factual situations. This of course is possible only in cases that do not happen to trigger the 145 federal crimes that have federal minimum mandatory sentences.

And there lies the difference between an honest retired judge bemoaning her forced needless over-sentencing of hundreds of years and a sitting judge who blindly believes federal cases where he has actual sentencing discretion make up for all the ones where he has none. When he can truly make a difference for good in the lives of defendants, defendant's families and for victims, he does, and that's commendable. Yet it's troubling that he doesn't spend any time acknowledging the truth that for 145 federal crimes that trigger harsh minimum mandatory sentences he's just another voiceless cog within our corrupting criminal justice system justified and given authority by the false pretense that our federal judges have sentencing discretion.

FEDERAL JUDGE CONFESSES TO OVER-SENTENCING DEFENDANTS TO HUNDREDS OF YEARS OF PRISON

In a searing article a federal judge confesses to sentencing defendants to hundreds of years more than she wanted to because she had no choice due to the power of federal prosecutors in sentencing and the necessity of giving minimum mandatory sentencing for the 145 federal crimes that require it. She also notes that the United States with less than five percent of the world's population incarcerates twentyfive percent of the prisoners in the world. She could also have mentioned some of the obvious unfairness in our sentencing including the fact that although rates of drug use for whites and blacks in America are the same blacks are ten times as likely to go to prison as whites.

Finding the
Key to Fair Sentencing

After noting that sentencing factors should focus on the four elastic and at times conflicting sentencing goals of retribution, confinement, deterrence and rehabilitation. 
Yet she often had only one sentencing tool at her disposal, the authority to confine and punish federal defendants with long minimum mandatory prison terms.

... I was often prohibited from assessing a defendant’s history, personal characteristics or role in the offense. In sentencing, where judgment should matter most, I could not exercise my judgment. I felt more like a computer than a judge. And I was not alone. 

Over the years, many of my colleagues on the federal bench felt the same frustrations. 

This problem upset me as soon as I was appointed in 1994. Mandatory minimums were almost always excessive, and they made me feel unethical, even dirty. After seven years, my patience had run thin and my conscience was troubled; I began to consider resigning. I sought the advice of a revered mentor, a federal judge with more than 30 years of experience. He pointed out that quitting would serve nobody, as another judge would be required to impose identical sentences anyway. He also said that if I left, the bench would lose a judge who could advocate for criminal justice reform through her decisions. 

So I remained. But to this day, I am pained by many of the sentences I was required by law to impose. While I bore the title “Honorable Judge,” I felt less than honorable and more like a complicit tool of an unjust system.

Here is a federal judge who clearly cares about the people she is sentencing as judges often did in the era before unfair minimum mandatory sentences. Today it's much easier to simply give harsh sentences than to give fair sentences. Every judge knows that it's much less likely that a federal appeals court especially in the eleventh circuit will overturn an overly harsh sentence than a fair one. 

It's interesting and sad that this judge saw herself as little more than a computer or an adding machine for calculating the hundreds of years in prison others must serve. And somehow especially disheartening that her conscience only awoke to make her public attack on harsh federal sentencing after she'd safely retired. 

For judges still working, I ask you, where are you? Where are your voices. Why aren't you speaking out against the injustices that take place in your courtrooms every day? 

THE SENTENCING GUIDELINE RANGE SHOULD ONLY BE ONE FACTOR USED FOR FAIR SENTENCING IN FLORIDA

Finding the appropriate sentencing guideline range is one of the most important factors in sentencing since judges and prosecutors use the guidelines as a base point for sentencing. When the sentencing guidelines call for prison time it's very important for to find the best ways to avoid the implications of the guideline range so the judge has better sentencing options. Within the state and federal sentencing guidelines systems prosecutors often have far more power than judges in determining the final outcome of sentencing so judges must be stopped from giving prosecutors preference in sentencing to achieve the best results for defendants.

Weighing the real costs of prison.
Vermeer, Woman Holding a Balance

The most important factor in sentencing other than the application of the sentencing guidelines is persuading the judge who may be human that you're a person and not just a case number and that just maybe you're a human too. Let's face it judges see the worst of humanity in their courtrooms every day. Imagine spending hour after hour listening to lawyers constantly arguing and belittling each other. It'd make anyone less inclined to be sympathetic. And it would be difficult to actually listen for mitigating factors in sentencing thru the fog of arguments.

Ultimately the goal of the process for some judges seems to be simply to harshly punish rather than to find the best remedy for whatever caused the criminal allegation in the first place. For a defense lawyer the driving force of presentations to the judge should be to read the judge's mind to find the best arguments for a non-prison sentence of probation, house arrest or work release. For most cases within the criminal justice system a prison only ruins the lives of the offender and his family and does nothing to help rehabilitate him. Is jail really necessary for a drug crime such as possession of cocaine or for a crime against property such as grand theft? What are the real costs of sending someone to prison?

Does the judge consider that the defendant will lose his job? Does the judge know that the family will lose their home? Does the judge understand that the children will no longer have a parent? Therefore it's necessary for the criminal defense attorney to touch the very heart of the sentencing judge so that he fully comprehends all of the dire consequences a sentence of prison will mean in balancing for a fair decision. So often in criminal law we see the results of a harsh sentencing is far worse than the very crime being answered.

HOW CAN THE NATIONAL SECURITY ADVISER AVOID A FEDERAL CRIMINAL INDICTMENT: DON'T LIE TO THE FBI

The dead of night. My phone rings. No less than a beleaguered Michael Flynn seeking advice again. For his sake I don't answer. These calls I've learned may be recorded who knows by whom or why.

Speaking to the Ambassador

Before we explore whether or not our new National Security Adviser has broken federal laws we can certainly agree that like the boss he serves, he is not competent. Only in Washington for a few weeks and he's already under threat of criminal prosecution under the Hood Act for undermining the foreign policy of the former administration in recorded calls to a foreign power's ambassador. It will depend on the recordings themselves as to whether his actions rise to the level of a crime. 

But the FBI investigates in mysterious ways. If they can't pin a criminal case based on the facts the most effective way to force a guilty plea to a federal crime under federal law is merely to establish that the defendant lied to the FBI. In fact the real threat from federal prosecution comes if he told the investigating FBI agents the same lies he told to the Vice President. If so, recent history of FBI investigations should give the National Security Adviser cause to make ever more late night calls to federal criminal defense lawyers in need of sleep.

The FBI's treatment of former House Speaker Hastert in a hush money case was unjust because they used his lies to the FBI about why he went over the $10,000 banking withdrawal limits to force a leveraged federal criminal plea to effectively punish his admittedly disgusting but unprosecutable sexual abuse of children which at the time allegedly committed was not even a federal crime. Martha Stewart was also undone not so much for the underlying allegations of stock manipulations the FBI suspected but couldn't prove but for being caught in not being honest to the FBI.

Here's what I wrote about the Hastert case at the time:

He stated that he didn't trust the banking system when in truth he was paying hush money. So what does the FBI do? Rather than investigate the possible blackmail Hastert was subjected to, it pulled out the infamous Martha Stewart option of charging federal felonies for not being honest with FBI agents. When one ponders the Stalinist aspect of these statutes how can one help but think they are un-American.

My problem here is with the federal criminal law. It simply should not be a crime to lie to FBI agents. It gives them too much power. If anything our criminal justice system actually provides incentives for law enforcement officers to commit perjury and those officers who do lie in official reports or under oath should be disciplined and prosecuted but often aren't. And it clearly gives them the ability to leverage that power in such a way as to force guilty pleas in cases where there is insufficient evidence to win a conviction on the actual criminal act under investigation. 

THE FEDERAL CRIME OF MAKING THREATS AGAINST THE PRESIDENT COULD GET YOU ARRESTED & CONVICTED

One of the surest and quickest ways to meet a friendly FBI agent is to threaten the President of the United States. Whatever one may think of the president, his policies or his administration, the office of the president is protected by federal criminal law. 

Threaten Roosevelt again & you're out of here!
Nighthawks, Edward Hopper, 1942

Any threats made against a sitting president will be taken seriously by federal law enforcement officers, investigated fully and may result in an arrest or a presentation to a federal grand jury for an indictment. The law is laid out at 18 U.S.C. Section 871(a) and basicly establishes that to prove an allegation of threats against the president the government must show the following:


1. The defendant intentionally threatened to kill, injure, kidnap or harm the President of the United States or harm another officer next in order of succession to the presidency.
2. The defendant meant the words to be a real threat.
3. The threat was either written or spoken. 

Just proving the making of a threat is the sum of the crime since there's nothing in the statute that requires the government to prove that the defendant had at the time the treat was made any real ability, intention or plan to actually pursue a conspiracy to kill, injure, kidnap or harm the President with or without weapons, guns or firearms. 

Possible federal criminal defenses include the argument that the statement was not a real threat, but what constitutes a threat? Let's put it this way, if you're even asking the question you're on thin ice as anything that could be perceived as physically injuring the president or worse is sufficient to trigger the crime. Yet it must be a serious threat in that those you thought would hear or read the communication would take the threat to be a threat not just a joke. 

Since you're still reading this perhaps an insanity defense is appropriate to consider in your case. But if unfortunately you are found to be sane then some affirmative defenses such as duress (gun to your mailman's head), mistake (you thought you were merely threatening your mailman not the president) or coercion (that damned deranged mailman put the gun to your head) may secure your freedom.

There's never a free speech first amendment right to threaten the president. Here it is the speech or written word that is specifically not protected from federal prosecution. So no matter how you feel it's very important to be careful that you never say nor write anything that threatens the person of the president.

FLORIDA PROSECUTORS MAY PURSUE CRIMINAL CHARGES TO TRIAL EVEN WHEN VICTIMS DON'T

Florida prosecutors often proceed toward a full prosecution even when the victim does not want to cooperate. In some crimes such as sexual battery on a minor or child pornography this makes sense because the victim isn't in a position to reliably gauge the full consequences of the prosecution. In other cases such as spouse battery the state has an interest in making certain that in the future the family unit is not subject to violent behavior. 

Prosecutor & Defendant at Trial

In fact in most cases that allege violent behavior such as aggravated battery or assault the state of Florida will look at the victim's desire to pursue prosecution as little more than a recommendation. In other violent acts such as murder, vehicular manslaughter or DUI manslaughter the desires of the deceased victim's family are considered only very late in the process after a plea or conviction and before sentencing to determine not whether charges should be pursued but how much prison time, if any, the family wants the presiding sentencing judge to give.

But why does the state sometimes prosecute nonviolent crimes such as scheme to defraud, fraud or grand theft even when a victim does not want to proceed? In truth in these cases the lack of victim cooperation can prove insurmountable to proving the case before a jury so are much less likely to be pursued by Florida state prosecutors who believe civil remedies are therefore sufficient. But even here it would depend on the nature of the theft. For example, someone found to have embezzled the youth baseball players fund is apt to be prosecuted despite unanimous victim support for non-prosecution as even prosecutors are arguably human and apt to want to throttle the perpetrator despite the wishes of the victims.

In Florida victims can't force dismissal of criminal charges by signing requests not to prosecute the defendant and delivering that request timely to the prosecutor. Instead the request is kept by the state attorney to help justify a no filing of the criminal charges or as evidence of the victim's possible lack of enthusiasm should things go wrong later. Nor can a victim control the outcome of a criminal case by trying to evade a witness subpoena for testimony at trial with much hope of success since occasionally judges punish the victim with jail after citing contempt of court where proof of evasion is evident.

THE BEST LIFE EXPERIENCE FOR OUR FEDERAL JUDGES SHOULD BE TIME SPENT HUNGRY WHILE SITTING IN JAIL

Federal judges tend to be old, male and even whiter than I am. They often come from privileged backgrounds, better schools and colleges which in practice provides limited actual insight into the lives, problems, decisions, hopes and failures of those who come before them. Culturally, politically and aesthetically they are not of us nor with us, but always apart from us. 

Sentencing a Federal Judge to Jail

Ideally we'd live in a society where our judges pride themselves on life experience that makes their ability to judge better. A good judge in my book has spent time hungry and fed the poor; lived in a jail and spent time there helping those charged with crimes. A judge would have an understanding that a full, giving, caring life is about making the world a better place. 

Yet we often expect too much from our federal judges. We expect them to be fair. We expect them to know the law. We expect them to follow the law. Occasionally I even foolishly expect them to kick the prosecutor's butt when federal trials become a mockery of justice. Our federal judges who are appointed for life terms by the President of the United States have little hope for parole at any age since they have nothing else in their lives comparable to the glorious authority of their cold courtrooms. 

So what can we do to eliminate implicit bias in our federal criminal cases, jury trials, arguments, motions and sentencing hearings? Every closing argument, motion and hearing should bend toward making our defendants more than just another case number, more than a name, but a haunting unforgiving mirror of humanity for the that particular judge. 

TAKING IMMEDIATE ACTION AFTER A FEDERAL GRAND JURY INDICTMENT OFTEN GAINS THE BEST RESULTS

We've looked at methods to stop the grand jury process, establishing there's been grand jury abuse and how to make direct challenges to a grand jury indictment. But unfortunately even when a grand jury indictment may be subject to a later challenge once a federal grand jury produces an indictment against a defendant who has not already been arrested for the allegations he will face immediate federal arrest. Within hours or a few days of the arrest the defendant will face a federal magistrate judge in a federal courtroom who will make important determinations as to whether the defendant should be released while awaiting trial and if so what restraints and limitations may be required such as giving up of passport, gps monitoring, drug monitoring or ankle bracelet.

 Eliminate Your Flight Risk

Unlike the way criminal cases move forward in Florida's state criminal court system it's unusual for a bail bondsman to be involved in the federal bond process as the magistrate is apt to either allow a property bond subject to forfeiture or to grant a signature bond if release before trial is deemed appropriate. The magistrate judge's primary objective is to secure attendance to future court hearings and trials by eliminating any flight risk from the defendant. Factors a judge takes into account for federal bond and detention include the nature of the offense, the prior record of the defendant, the violent nature of the offense and statutory requirements such as the necessity to view any drug trafficking offense as a presumptive threat to the public.

In the Middle District of Florida most federal prisoners await their first appearance at the Pinellas County Jail which is often overcrowded with unsafe conditions. After the initial hearing with the magistrate the Florida federal cases proceed quickly compared to Florida state cases and in a manner of months are usually resolved by plea or trial.

The most important decisions made by federal defendants are often made very early in the federal criminal process sometimes well before the grand jury even deliberates on the allegations of misconduct. In federal cases where smart decisions are made early the likelihood of future success are enhanced so it's important to work with your federal criminal defense lawyer to gain the best results.

HOW TO MAKE DIRECT CHALLENGES TO A GRAND JURY INDICTMENT IN THE MIDDLE DISTRICT OF FLORIDA

After a federal grand jury hears witnesses and views evidence it deliberates to determine whether to issue a federal indictment. A federal indictment is the actual accusation of specific federal criminal conduct that must include the inclusive dates of the alleged crime, alleged participants known or unknown listed as co-defendants and other particular allegations such as the locations of the misconduct. 

Juggling Federal Indictment Challenges
 Renoir

In earlier posts we examined legal challenges to a grand jury indictment or grand jury subpoena that included four ways establishing prosecutorial federal grand jury abuse in the Middle District of Florida and eight methods to stop a federal grand jury subpoena in the Middle District of Florida and what to do if a federal grand jury is looking into your conduct or the conduct of your business in the Middle District of Florida. 

Since federal defense counsel is never permitted to offer a defense at a grand jury hearing all of the evidence submitted to the grand jury comes directly from a United States prosecutor as well as government agents from the FBI, DEA or other federal law enforcement branch. Because the information received by the grand jury is so one sided grand juries are known for being malleable instruments of the federal prosecutors who control and direct American grand jury indictment deliberations. 

Once prosecutors have gotten their indictment the following challenges may be made to attack the charging document:


1. Showing that the federal indictment fails to allege an essential element of the offense. A deficient indictment fails to adequately allow a defendant to defend himself.

2. Showing that there is duplicity or multiplicity which occurs when more than one charge is brought in a single alleged count within the indictment.

3. Showing that the indictment fails to allege a sentencing element. Facts that increase the penalty at sentencing must be alleged. For example, having a firearm during a significant drug trafficking case increases the penalty by five additional years. The allegation must be in the indictment if prosecutors later expect to persuade the sentencing judge to increase the sentence that would have been given.

4. Showing that there was error during the grand jury instructions can be raised as an issue but the bar to prove this has been set very high by recent federal case law.

5. Showing substantial variance in the grand jury allegations as found in the indictment and the actual evidence introduced at trial.

All of these fundamental grand jury challenges should be examined in detail in every complex federal criminal case to determine if there are fundamental leverage points of weakness in the federal indictment.

NEW RESEARCH SHOWS WHO BENEFITS FROM MASS INCARCERATION IN AMERICA & WHY REFORM FAILS

What does it say about America's that our prison population of 2.3 million people is larger than the population of 15 of the states that make up our union? Who benefits from so many of us being imprisoned and who stands in the way of reform? A new report Following the Money of Mass Incarceration finds some disturbing answers.

The report found some basic beneficiaries of prisons who fight reform that include the following:

• Bail bond companies that collect $1.4 billion in nonrefundable fees from defendants and their families. The industry also actively works to block reforms that threaten its profits, even if reforms could prevent people from being detained in jail because of their poverty. 

• Specialized phone companies that win monopoly contracts and charge families up to $24.95 for a 15-minute phone call.

• Commissary vendors that sell goods to incarcerated people — who rely largely on money sent by loved ones — is an even larger industry that brings in $1.6 billion a year.

Other beneficiaries are the builders of prisons and their bond holders, public and private employees of prisons, utilities, health care workers (an insignificant factor in places such as Pinellas where the jail is routinely unsafe for state and federal prisoners), as well as those who put people in prison by holding jobs such as judges, lawyers, bailiffs and police.

It's disturbing to see how many industries, companies and folks living happily in your neighborhood benefit from mass incarceration in America. No wonder so much inertia spins toward ever greater incarceration. For repeat violent offenders who commit battery, aggravated assault or manslaughter incarceration may be an inevitable means of punishment and a reasonable solution to protect society. But for nonviolent crimes such as drugs, marijuana possession, cocaine possession, grand theft or scheme to defraud a term of prison only ruins the lives of those convicted. 

Yet people are still being sentenced by our spineless judges to long terms of needless imprisonment for nonviolent offenses. Many of these nonviolent crimes should not even result in an arrest in Florida. Perhaps this reports stark exposure of those who benefit the most from mass incarceration will help end this American crisis.

WILL ACCEPTANCE OF RESPONSIBILITY BE DENIED AT SENTENCING AFTER FILING A MOTION TO SUPPRESS

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.