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.