WHAT IS THE SURPRISING FEDERAL CRIME WOMEN COMMIT IN GREATER NUMBERS THAN MEN AND WHY?

While parsing thru the new fiscal year report from the Federal Sentencing Commission, your favorite Clearwater Criminal Defense Attorney found a surprising statistic struggling to be set free among the gender based findings. The report unexpectedly notes that women outnumber men in only one category of crime in Federal Criminal Sentencing, which crime do you think it is? 

Degas, Mary Cassatt & Cash, 1880

Here's a hint. It's not drug trafficking though at nearly 30% of all federal offenses women commit, it represents by far the highest number of women offenders. 

Yet the number of men committing federal drug trafficking far exceeds women who are often used by men as low level operatives or drug mules to transport or sell drugs.

So that leaves us with the intriguing question of which Federal Crime women commit in greater numbers than men. As the Sentencing Commission report notes it's embezzlement:

In the fiscal year 86.5 percent of all offenders were men, compared with 86.5 percent in fiscal year 2007, and 86.0 percent in fiscal year 2002. Among female offenders, the most common crime was drug trafficking (28.8% of all women offenders). Embezzlement was the only crime for which female offenders outnumber male offenders (50.3% to 49.7%)

Before you decide to hire only men to keep those accounts of your business safe, lets look at why women commit federal embezzlement more than men. 
A look at the Federal Code Chapter 31 for Theft and Embezzlement reveals that there's a blurred line between mere Theft and the more sophisticated theft within an Embezzlement. Embezzlement is a theft that also violates a fiduciary duty of trust to an employer or other entity. I suspect that women happen to be in greater positions of trust, not only because they're more trustworthy, but because their jobs may tend to place them in closer proximity to liquid assets, such as the teller's access to cash at a bank. 
A recurring problem in complex Federal Grand Jury Embezzlement Indictments of alleged white collar crime in Tampa Bay Florida Federal Court is over-broad statutes that result in over-criminalization where Defendants are charged with crimes such as embezzlement without proven criminal intent nor knowledge that what was done was illegal. For example, a company book keeper is ordered by the Company's Chief Financial Officer to keep a second set of books for unknown reasons. Should she be charged in a federal embezzlement scheme?
If you've been charged with a white collar crime such as fraud, forgery, theft or embezzlement, you should seek the advice of a Clearwater Criminal Defense Lawyer who will find the best possible solutions to protect your future.

STUNNING FEDERAL JUSTICE FAILURE: DEFENDANTS REFUSE JURY TRIALS BECAUSE THE GAME IS RIGGED

The United States Sentencing Commission has just published a complete overview of all Federal Criminal Cases for the Fiscal Year which makes for entertaining reading for your favorite Federal Criminal Attorney. 

Van  Gogh, Prisoners Round, 1890

The report notes that over 96% of federally indicted Americans plea guilty rather than go to trial; but  those writing the report indicate that's not a problem because that's how it's been for ten years. 

The truth is Americans indicted by Grand Juries plead guilty because they believe the system is rigged. Are they right?


Rather than keep you in suspense here are some of the interesting nuggets from the Commissions Report, then we'll look at why so many Americans choose guilty pleas with long prison terms rather than risking trial by jury:

The vast majority of convicted defendants plead guilty. In fiscal year 2011, more than 96 percent of all offenders did so, a rate that has been largely the same for ten years. When offenders pled guilty, 44.0 percent received a sentence below the applicable sentencing guideline range, either at the request of the government, at their own request, or initiated by the court. Approximately 61 percent (61.5%) of these below range sentences were requested by the government, usually because the defendant had provided substantial assistance to the government or had agreed to have his or her case handled as part of an early disposition program.

Clearly the classic adversarial criminal court system has broken down when it comes to Federal Criminal Cases. Defense lawyers and their clients are unwilling to test the strength of the Government cases at trial. There are a number of reasons for the trend toward ever greater plea bargaining.

First, one could argue that most Federal cases are the result of better investigative techniques than typical criminal cases from the State of Florida, with the Feds simply amassing much more firepower aimed squarely at a Defendant. The Feds fight with more funding, more time and better educated, more experienced law enforcement officers who often graduated from doing smaller state investigations. 

Yet the Feds often get it wrong. Recently we've seen the expanding scandal of failed FBI forensics laboratories leading to unacceptable convictions of the innocent, as well as 28,000 flawed hair and fiber cases, failed DNA cases and other flawed evidence in which Federal Laboratories proffered wrong expert testimony and expert analysis in American Courtroom. What about the thousands of innocent Defendants who were persuaded to plea because it was the best deal they could get and the Defense Lawyers, instead of believing in their clients' innocence believed the faulty evidence to be reliable. The result is an unconscionable verdict of failing justice in the Federal Criminal Justice System.

Another reason there are high plea percentages in Federal cases is the severity of the Federal Sentencing Guidelines in which a conviction will mean years spent in the vast Federal Prison System. But years will be spent even if there's a plea of guilty, as the Sentencing Commission's Report notes that the average Federal sentence last year was over five years in prison.

Neither of these reasons should hinder such a high number of American Defendants from waiving their constitutional right to jury trials. Unless that is, they find that the game is rigged. 
From my experience in the Middle District of Florida in Tampa it's clear that sentences are usually severe even when there is a plea bargain that results in a plea agreement. 
This is true because the Sentencing Guidelines only grant a three level departure for acceptance of responsibility coupled with a few more levels down if the Judge finds that there's co-operation based on a 5K, but the Federal law requires that the Prosecutor file a Motion for Downward Departure based on substantial assistance otherwise the Judge can not look at co-operation for sentencing departures.

Ultimately the reason there are over 96% of pleas of guilty in Federal Cases is that our system is no longer fair. What happened?

The Federal Sentencing Guidelines have taken too much of the discretion away from our sentencing Judges and given it to Prosecutors. Prosecutors easily manipulate the grand jury to re-indict when there is no plea. Despite the work of Clearwater Criminal Defense Attorneys Prosecutors use the Sentencing Guidelines as leverage to force guilty pleas even when evidence is weak or where the facts and circumstances of the case do not exclude the possibility of actual innocence.

INNOCENT MAN SPENDS 28 YEARS IN PRISON FROM FLAWED FBI ANALYSIS MISTAKING DOG HAIR AS HUMAN

Clearwater Criminal Defense Lawyers are often astounded at the manufactured evidence that expert witnesses testify to while being cross-examined during trial which leads to needless convictions of people who are later proven innocent. Testimony from witnesses of agencies such as the FBI are given great weight by Jurors during trial and by Judges during sentencing.

Matisse, Self Portrait Jail Shirt, 1906

Yet forensic laboratory evidence from the FBI has been found to be tainted, unreliable and based on flawed forensic techniques in polygraph cases, fingerprint cases, DNA cases and handwriting cases. Often courts even in Florida will allow expert lab reports to be read to a jury without allowing cross examination of the expert who wrote the report. 


The Washington Post notes that American Courts are reviewing questions of innocence in over 21,000 cases of failed expert testimony and lab results just from the FBI's hair and fibers unit. The startling numbers have even more impact when you consider the actual lives destroyed. 
Santae Tribble spent 28 years of his life in prison for a murder he didn't commit. New DNA tests established that the 'expert' testimony and evidence from the FBI matching his hair to that of hair found at the murder seen was wrong. In fact the FBI examiner even failed to find that some of the hair examined belonged to a dog. 

The Judge signed a Certificate of Innocence stating that the Trial results must be vacated and the Post gives some insight into why:

A hair match also was critical evidence at his trial...Hair analysis was subjective and lacked scientific research into how often hairs of different people might appear to match, and the FBI lab lacked protocols to ensure that agent testimony was scientifically accurate.

The FBI agent testified at trial that the hair from the stocking matched Tribble’s “in all microscopic characteristics.” In closing arguments, the federal prosecutor went further: “There is one chance, perhaps for all we know, in 10 million that it could [be] someone else’s hair.” 

Court ordered DNA testing by a private lab confirmed that none of the 13 hairs retrieved from the crime scene shared Tribble’s genetic profile.  

One came from a dog; facts over which the FBI-trained examiners disagreed or missed outright at the trial.

The exploding scandal in forensic laboratories undermines American Justice. But so does the method by which the lab results were used. As often happens in Criminal Trials, the Federal Prosecutor argued far beyond the actual evidence in the closing argument. Isn't this a clear example of prosecutorial misconduct?

Yet worse where is the voice of our United States Supreme Court on one of the most important issues of our time, that goes directly to America's standards of justice, due process and fairness - the convictions of those who are actually innocent. 
Here's Justice Scalia taking the other Justices to task for taking a Defendant's actual innocence into account in Murder Cases:

This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is “actually” innocent.   

Quite to the contrary, we have repeatedly left that question unresolved, while expressing considerable doubt that any claim based on alleged “actual innocence” is constitutionally cognizable.

A Clearwater Criminal Attorney would remind Justice Scalia over a bottle or two of wine that when it comes to 'actual innocence' in criminal cases, the Supreme Court's first duty is finding Justice. 

DOES FAILING TO APPEAR FOR SIX YEARS ALTER THE STATUE OF LIMITATIONS IN FLORIDA CRIMINAL LAW?

Recently your Clearwater Criminal Defense Attorney was asked the following:

Van Gogh, Girl in White, 1890

My sister was arraigned on a Grand Theft charge in Florida six years ago. My family has reason to believe she may be innocent of the charge. After she attended the arraignment hearing things went from bad to worse in her life, she turned to a life on the streets and she failed to appear for any further court hearings on the Grand Theft. 

She finally contacted the family after all these years. That's when we checked the computer and found that there were warrants for her arrest for Grand Theft as well as a Failure to Appear charge. We talked her into turning herself in, but now as she's sitting in jail we're wondering what will happen to her. Could the Grand Theft charge be dismissed because it violates the statute of limitations, after all it's been over six years since the charge was filed against her? 

In criminal law the statute of limitations in Florida if five years for a Grand Theft filed as a third degree felony. That means that the state of Florida has five years to file a criminal action against someone who allegedly has committed a crime. The idea is that failure by the State to give timely notice of a crime diminishes one's ability to effectively mount a fair defense. But here the State of Florida timely filed the charge, then your sister absconded making things worse by failing to appear for the Grand Theft. So a warrant was issued for the underlying Grand Theft, then for the second felony, the Failure to Appear.


Typically, the State of Florida must show that it made a good faith effort to find a Defendant once an arrest warrant is issued. Failing to show an effort was made to find her could result in dismissal. However, if your sister was living on the streets without a permanent address or living at an address that was different from the one given as her dwelling during the course of the Grand Theft charge a Judge would likely find that law enforcement didn't find her because she didn't want to be found. 
Still it'd be interesting to see if she had any police contact while living on the streets. If officers made contact with her for an infraction such as jaywalking and failed to arrest her on the outstanding arrest warrant, a Judge could find that law enforcement failed to meet its good faith burden of attempting to find her
Ultimately even if your sister didn't commit the underlying Grand Theft she made a terrible mistake in not appearing for court hearings thus giving the State of Florida the sword of a new felony, the Failure to Appear.
It's especially heartening for a Clearwater Criminal Lawyer to hear that your family has reached out to help your sister during this holiday season. Yet as important as the resolution of her case is, letting her know that the family will be there to support her while she gets back on her feet will give her the strength to get thru this.

HOW COULD A FAMOUS ARCHITECT CAUGHT WITH 13 POUNDS OF COCAINE RECEIVE ONLY SIX MONTHS JAIL?

Your favorite Clearwater Criminal Defense Attorney applauds Federal Judges who use their discretion to construct fair sentences under the Federal Sentencing Guidelines range. 

Architect Eugenio Velazquez

A California Federal Judge recently sentenced a famous Tijuana architect who designed some of the city's most beautiful landmarks including it's modern Cathedral as well as Tijuana's iconic, possibly ironic, Police station. The hapless architect was caught entering the United States with nearly 13 pounds of cocaine hidden in his minivan. 

That weight of cocaine in the Middle District of Tampa, Florida easily nets a Defendant at least a ten year minimum mandatory sentence with the possibility of additional time under the Federal Sentencing Guidelines, whichever results with the higher number. A Defendant with no criminal history can benefit from the federal safety valve provision permitting the Judge to pierce the minimum mandatory, but it gives only a two level drop from the guideline score range, which easily is over ten years on thirteen pounds of cocaine.

So why and how did the California Federal District Judge go under the Federal Sentencing Range? 

The Defendant claimed that drug traffickers threatened his life if he refused their demands to take the drugs over the border. Plus it helped that the Defendant had led up a 'good life' before his arrest. After all, Judges one hopes, are human.

Press Reports note that the Judge took into account the fact that the  Defendant verified the threats against him:

The judge said the ability of Velazquez to verify threats against him were crucial to the reduced sentence. He was also acknowledged for leading "a good life" until his arrest.
The architect, fearful of drug-fueled violence in Tijuana, accepted his client's offer to provide personal security while Velazquez crossed the border between home and work.Then the client — unnamed in the filing — demanded pay of $40,000 or drive drugs across the border....Velazquez's attorney told reporters after the sentencing that a friend verified the claims for U.S. investigators. Both men said they were threatened at gunpoint.

As Mexican cartels move cocaine north from South America, they rely on "mules" to hide small packages of drugs in vehicle compartments and on their bodies to get past U.S. inspectors on the Mexico border. Many couriers are young, poor or adrift, desperate for a few hundred dollars.

To persuade the sentencing Judge to give a fair sentence, Clearwater Criminal Lawyers must first establish that the Defendant has lived a 'good life' then present facts in mitigation at sentencing with verifiable evidence. 

NEW STUDY SHOWS JUDGES GIVE UNFAIR CRIMINAL SENTENCES NEAR ELECTIONS, BUT WHY?

Clearwater Criminal Defense Lawyers would like to believe our sentencing Judges are always fair and impartial. As Americans all of us would hope our Judges stride above the political fray.
Yet a recent study shows that Judges give much tougher sentences for violent crimes with ten percent more jail time when elections for judgeships are close at hand. This holds true even if the Judge himself is not running for re-election. 
Here's an excerpt from the study Crime, Punishment and Politics: An Analysis of Political Cycles in in Criminal Sentencing:

Sentences are around 10% longer at the end of a judge’s political cycle than the beginning; deviations above the sentencing guidelines increase by 50% across the electoral cycle....  

We find that sentence lengths exhibit a break precisely at the end of judges’ political cycles, but not at the end of other officials. We can rule out cyclical patterns in sentencing due to factors other than politics by examining sentencing by retiring judges, who do not face electoral pressure and the sentencing of less serious crimes, about which the public (and potential competitors for a judge’s seat) are less concerned.

Toulouse, Portrait of Van Gogh

Do the Judge's do this purposefully or are they swept into it from political braying? Is it the fear of opposition? The dread of defeat? My hunch is that Judge's correctly calculate that there is closer press scrutiny for any newsworthy information near elections. 
Sentencing is always more than cold cool calculations of scoresheets and guidelines. In my criminal law experience having someone from the press attending my client's sentencing should be calculated as another aggravating factor on Florida Sentencing Scoresheets and Guidelines. The Judge has little incentive to be lenient. The Defendant may do another heinous crime by morning if he sets the man free. And if the Judge is determined to show mercy with no jail despite the victim's tears and fears, he'd better make it clear on the record why as his reasoning is the news.
A Florida Circuit Judge loses nothing by being too stern, but could lose a future election by being too soft or worse find himself the butt of jokes and a laughing stock at his Country Club golf course. After all, only a handful of  Largo Defense Attorneys will understand the Judge was just trying to be fair, but their not members of his club.