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.

IF YOU NEED HELP: CLEARWATER CRIMINAL LAWYER CONSULTATION FOR YOU ANY HOUR OF EVERY DAY

When you or a member of your family is facing the most challenging time of your life it's important that a criminal defense lawyer is immediately available to offer the best possible solutions for your problem. And at our firm we're always ready to offer advice 24/7 every day of the year. Just call (727)365-5555 and leave a message and the Clearwater Criminal Defense Lawyer will return your call tolp you as soon as possible to help you.

If you're being investigated for a Florida federal crime you'll need help from an effective and reliable lawyer with significant experience in Federal Court, who understands what to do if a federal grand jury is looking into your conduct, who knows how to establish federal prosecutorial abuse, who possesses  a comprehensive view of the Federal system including the judges, magistrates, federal agents and prosecutors and has had numerous successful trials in Federal Court including large drug cases involving cocaine as well as marijuana. 

If there's already been an arrest in your case for either the violation of a federal crime or a violation of Florida law such as battery on a law enforcement officer, aggravated battery, assault, drug crimes or grand theft, then it's vital to your prospects to pursue your investigation of the facts and law to mount the best possible defense for your case. This can best be done thru the hiring of an experienced Clearwater criminal defense attorney.

In all Florida courts it's a strategic advantage to having your lawyer at every stage of the proceedings as the cases quickly from investigation to arrest and toward a jury trial. The objectives set and decisions made in early stages of the criminal proceedings set the tone for everything that follows. Even after an arrest has been made by law enforcement officers the State Attorney's Office under Florida law must conduct its own investigation of the facts of a case and in felony cases that includes the taking of testimony. Although there may have been an arrest a defense lawyer already knowledgeable about the facts and circumstances of the criminal allegations will strive to lead the prosecutors toward a decision to no file the case.

At our firm we're always prepared to help you. Call today and receive the criminal law help you need from a Clearwater criminal defense lawyer available at any hour every day.

FOUR WAYS ESTABLISHING PROSECUTORIAL FEDERAL GRAND JURY ABUSE IN FLORIDA'S MIDDLE DISTRICT

Our exciting tour of the Grand Jury systems of Florida federal and state courts began with a look at What to do if a Grand Jury is investigating you, your conduct, your business or your friends and continues today with a look at what constitutes Federal Prosecutorial Abuse of the Grand Jury. Earlier when we looked at Eight Methods to Stop A Grand Jury Investigation  it became clear that establishing that the prosecutor abused the Grand Jury process is an excellent way to quash a grand jury investigation or a grand jury subpoena.

The benefits of establishing prosecutorial abuse of a grand jury in the Middle District of Florida is clear in that if the abuse is shown to be prejudicial the grand jury indictment may be subject to a motion to dismiss or a subpoena may be quashed. The following four actions of a prosecutor constitutes abuse:

1. Using the grand jury to target someone out of malice or an intent to harass that person. For example, Federal courts have found that showing a fundamental unfairness of the process by gathering evidence for a civil suit or instigating the calling of witnesses for the only purpose of forcing them to assert the 5th, or granting a pocket immunity are inappropriate.

2. Issuing a subpoena to a witness for a grand jury hearing for the sole purpose of collecting additional evidence in a different pending federal case. This use of the grand jury as an investigative tool probably happens much more frequently than judges or federal defense lawyers are aware because it's difficult to prove that information gleaned from one case is being used to help nail another case down. But when a prosecutor is caught in a case that's falling apart using the grand jury as a discovery tool is tempting.

3. Using unlawfully gleaned evidence such as when government agents from the DEA or the FBI gather evidence before securing valid search warrant.

4. Using evidence or testimony which the government knows is false violates American standards of due process. There is no place in our justice system for false evidence or perjured testimony.

Once one or more of these prosecutorial abuses of the grand jury system are proven then there exists legal leverage to have the federal grand jury indictment dismissed.

EIGHT METHODS TO STOP A FEDERAL GRAND JURY SUBPOENA IN THE MIDDLE DISTRICT OF FLORIDA

Stopping a federal grand jury subpoena may be made based on a showing of either a technical or a substantive error made by the federal prosecutor. This is done by enumerating the failure in a Motion to Quash the Grand Jury Subpoena made by the federal defense lawyer.

The Motion to Quash may be include one or more of the following seven defects:

1. A showing that the grand jury term has expired. This would mean that the grand jury was not actually legally authorized to conduct the hearing at the time the hearing took place.

2. A showing that the grand jury has an inappropriate mixture of citizens. For example, if it can be proven that the creation of the grand jury resulted from a systematic exclusion of minority citizens.

3.  A showing that the grand jury was created within a framework of bias or taint from inappropriate reaction to news media accounts of the incident in question. 

4.  A showing that the grand jury relied on information it should not have had access to during its deliberations. For example, establishing that a grand juror used google searches during the course of deliberations to learn information that went beyond the scope of the prosecutor's grand jury presentation.

5. A showing that the grand jury used inappropriate or illegally obtained information during the course of its deliberations. Typically this would involve the federal prosecutor submitting unlawfully obtained documents, email, encrypted files based on a password or business records which the DEA or FBI gained access to without first procuring a proper search warrant that was based on trustworthy facts.

6. A showing that the grand jury was subjected to the actions of a renegade prosecutor who used the grand jury as a fishing expedition thru myriad unjustified subpoenas and request for documents, emails or business records.

7. A showing that the grand jury heard evidence from a source which was later found to be excludable. For example, the grand jury hears evidence from a witness who lacked competency to testify to the given facts.

8. A showing that the grand jury lacked jurisdiction or venue. It makes sense that the grand jury, just like the case itself must be connected to the community in which it seeks to indict one or more of the members of that community. For example, in a federal drug case you'd expect some connection of the allegations to the place where the grand jury is meeting (though one might hope not in the very room where they meet).

As you can see proving one or more of these examples is easier said than done. However, if you or a family member has been indicted by a federal grand jury in the Middle District of Florida it's important to find a criminal defense attorney with federal experience to examine all of the possible defects that may have occurred well before the case is set for trial.

WHAT SHOULD I DO IF A GRAND JURY IS LOOKING INTO MY CONDUCT OR THE CONDUCT OF MY BUSINESS?

It's not an unusual question for a federal criminal defense lawyer to receive from those under suspicion of doing a federal crime in the Middle District of Florida: What should I do if a grand jury is looking into my conduct, the conduct of my business enterprise or the conduct of others I've been close to or done business with? 

It may have started with a visit from federal agents such splendid agencies as the FBI or the DEA or the ATF. Or it could originate with what is known as a target letter that as the name implies strongly suggests that you retain immediate legal help because you're likely to soon face an indictment from a grand jury. If you're the target of a federal investigation you need to understand the best ways to avoid arrest and prosecution.

Here is a sample of a target letter given by the Justice Department for use by Assistant United States Attorneys in federal criminal prosecutions:

This letter is supplied to a witness scheduled to appear before the federal Grand Jury in order to provide helpful background information about the Grand Jury. The Grand Jury consists of from sixteen to twenty-three persons from the Middle District of Florida. It is their responsibility to inquire into federal crimes which may have been committed in this District.
As a Grand Jury witness you will be asked to testify and answer questions, and to produce records and documents. Only the members of the Grand Jury, attorneys for the United States and a stenographer are permitted in the Grand Jury room while you testify.
We advise you that the Grand Jury is conducting an investigation of possible violations of federal criminal laws involving, but not necessarily limited to conspiracy to traffic in cocaine and marijuana, as well as mail fraud, scheme to defraud and federal firearm violation. You are advised that the destruction or alteration of any document required to be produced before the grand jury constitutes serious violation of federal law, including but not limited to Obstruction of Justice.
You are advised that you are a target of the Grand Jury's investigation. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. Anything that you do or say may be used against you in a subsequent legal proceeding. If you have retained counsel, who represents you personally, the Grand Jury will permit you a reasonable opportunity to step outside the Grand Jury room and confer with counsel if you desire.
Cordially, 

Your favorite Prosecuting Attorney

The letter starts out cordially enough, I guess, but it's not exactly an invitation to a birthday party but more like a request to attend a wake as the last paragraph is heart stopping. In fact just reading it makes me want to go confess something to a grand jury right now in hopes of evading an indictment os something far worse. Oh hell, I'll finish this first then confess. The letter of course is not only a warning of that gift that never stops giving, a future indictment, but also in paragraph three clearly warns the receiver that destroying evidence is a federal crime. 

Ultimately if you have knowledge that a Florida grand jury in the Middle District of Florida is looking into your past you need to protect your future by contacting a federal criminal defense lawyer as soon as possible to get the best possible results.

WHY PINELLAS COUNTY FLORIDA DRUG ARRESTS & INVESTIGATIONS WILL SOON SPIKE & HOW TO SURVIVE

For the past eight years the office of theAttorney General has sought to tamp down needless drug arrests and investigations especially in Federal marijuana trafficking cases and drug cases that did not involve violence or the use of firearms. Further, at least from the top, Federal prosecutors were directed toward the goal of fair federal drug sentencing with less reliance on statutory minimum mandatory sentencing and the typically harsh federal drug sentencing. 

It's likely that Attorney General nominee Senator Sessions or someone of his mindset will soon change the direction of the Attorney General's office. Senator Sessions has denounced all those who use marijuana as "stupid" even those who happen to live in one of the many states where marijuana use is now legal. Further, he proudly cites his time as a federal prosecutor in the eighties as being "a lieutenant in the war on drugs." It's disconcerting because most people directly involved in that American war on drugs including the judges, prosecutors and defense lawyers who waged it, are in agreement that people's lives were needlessly destroyed and ruined because of widespread federal prosecutions that brought long prison sentences. In fact the current Justice Department has done what it can to mitigate the damage done during the anti-drug crusade by reducing sentences where appropriate.

The new focus of the Justice Department will be to make more Florida arrests in places like Pinellas County and to severely punish not only violent drug traffickers but also small quantity drug users. The punitive use of the federal criminal court system will inevitably draw more federal prison time for people who are nonviolent drug users using resources that should be used to punish those who commit violent crimes. 

If you've been investigated, arrested or under possible grand jury indictment or scrutiny for drugs in the Middle District of Florida in Pinellas or Hillsborough County you'll need an effective, reliable Clearwater defense attorney familiar with federal criminal law to help guide you toward the best possible outcome.

YOU'VE BEEN ARRESTED - NOW WHAT? HERE ARE FIVE THINGS YOU MUST DO AFTER YOUR FLORIDA ARREST

Police in Florida who are convinced that a crime has been committed are recently being given more discretion to not always make an arrest by either issuing a notice to appear or by forwarding the case to the State Attorney's Office where prosecutors conduct further investigation before either declining to file the case or issuing an arrest warrant. A notice to appear could typically be given in a nonviolent misdemeanor case such as the minor drug offense of Possession of Marijuana or Possession of drug Paraphernalia as long as the marijuana amount was small. Forwarding the case to prosecutors often involves nonviolent felonies or cases where either the applicable law is in some doubt or the facts and circumstances of the case are not clear with further investigation needed. For example, in scheme to defraud, fraud, and many grand theft cases the sheer complexity of the facts in question may delay an arrest as an investigation by prosecutors and detectives moves forward.

But in most Florida criminal cases police take immediate action after an initial investigation by making an arrest. In these cases it's important for the person arrested or those who care about that person to take immediate action. Here are the five most important things to do:

1. Hire a defense lawyer. The lawyer will demand discovery such as police reports and state witness names and addresses and conduct a thorough investigation of the facts by interviewing possible defense witnesses, subpoenaing possible video or audio of the incident, researching applicable law, finding flaws in the police investigation, writing prosecutors to reduce or dismiss criminal charges and asking the judge to reduce any applicable bond with as few restriction while free as possible.

2. Bond out of jail. Our system of justice is not always fair because even innocent people who have been arrested but not convicted for felonies or misdemeanors may be forced to wait months in jail while their cases proceed thru the chaotic Florida criminal justice system. Loss of career and an inability to ably help with their defense is the result. Therefore, it's important to find the means to bond out of prison. Hire a bondsman if the direct bond amount can't be found. 

3. Stay out of trouble and out of harm's way. Don't do anything that will land you back in jail. Stay away from the victim or any state witnesses involved with your criminal case, that means no calls, no meetings, no instant messages. Stay away from wherever the offense occurred. Stay out of trouble and keep your nose clean.

4. Focus on your case. Give your attorney all the information that you have and try to get any information that you don't have. That means that if you believe there's a witness who could help your case that you do your best to find that person's name and contact information or give the lawyer enough information that he can do it as soon as possible. The faster your attorney has the information the sooner he can use it to help your case.

5. Be strong. A successful result is much more likely if you are upbeat and helpful. If you've got a mountain to climb, then start climbing. You've been arrested, maybe you're feeling disheartened, down and out and who wouldn't feel that way, but to fight these criminal charges you've got to be stronger than you've ever been not just for yourself but for your family and for those who love you. Get some exercise, eat well, control what you can control. If you've chosen a good defense lawyer then let this sit on his shoulders not on yours.

For over thirty years I've been exclusively practicing Federal and state criminal law in Florida, with the goal of leading clients who've been arrested to the best possible results so that you can go back to living a full life as you did before that arrest.

WHAT TO DO WHEN YOU'RE ISSUED A NOTICE TO APPEAR FOR A CRIMINAL CHARGE IN CLEARWATER, FLORIDA

In some nonviolent misdemeanor criminal cases Florida law enforcement officers may give what is known as a Notice to Appear to a defendant rather than making a formal arrest. Although there's no arrest in the case Florida's archaic and chaotic criminal justice system treats every criminal charge as significant. It's important to understand that even in a criminal case that did not initially result in an arrest may be punished with jail time, probation or hefty fines. For example, lately the Pinellas County Sheriff's Office, the Largo Police Department and the Clearwater Police Department are apt to give a Notice to Appear rather than making an arrest in possession of small amounts marijuana cases yet it's still important to make a priority of avoiding harsh punishments in drug cases as they can result in jail, probation and fines not to mention the loss of employment opportunities. 

In Pinellas County your Notice to Appear will give a date and time to appear for a hearing on the matter at a Courtroom at the Criminal Court Complex located on 49th Street in Clearwater, Florida. Failing to appear at that place and time will not only result in an arrest warrant being issued for you but will result in a new charge being filed, known as Failure to Appear, thus complicating any future efforts to reduce, dismiss or negotiate the original criminal charge.

The first hearing date given in the Notice to Appear is called an arraignment. At the arraignment the judge will make sure that the defendant understands the nature of the charged offense, make a finding for the record of how the defendant intends to plead and will ascertain whether the defendant has hired a defense lawyer. If defense counsel is retained before the arraignment the lawyer can file a notice of appearance with the Court so that the defendant need not attend the arraignment.

It's always important to hire your criminal defense lawyer as soon as possible even when there has not been an arrest. That way your lawyer will have time to investigate the facts of your case and find the best possible outcomes leveraging your judge's discretion to resolve your case so that it won't unduly affect your job status, your family life or your future.