FEDERAL ATF AGENTS ARE RAMPING UP GRAND JURY INDICTMENTS OF ONLINE FIREARMS SALES IN FLORIDA

Your Tampa Bay federal criminal lawyer has been seeing a significant uptick in federal investigations of internet sales of weapons and other firearms in the Middle District of Florida. Most Federal weapons investigations are typically conducted by the Bureau of Alcohol, Tobacco and Firearms (ATF) unless weapons are found incident to a drug trafficking investigation which would trigger an investigation conducted by the DEA or FBI.

ATF Investigators

Apparently individual gun owners are being targeted who possess firearms legally, but then sell the firearms in a manner that the feds deem unlawful. For example, one young man to help pay his way thru college allegedly was 'flipping firearms' by buying the weapons at Walmart and other legal distribution centers, holding them for a short time, then selling them at a markup on the internet. 

The problem according to the ATF agents is that the paperwork a gun buyer must sign to purchase a firearm under oath establishes that the weapon is for personal use and not for sale. Also, in an effort to keep guns out of the hands of criminals, ATF does not want private sales of firearms to disrupt the law requiring background checks to buy a weapon.

Here are seven factors ATF will consider in making a determination as to whether a specific weapon was bought for personal use or for sale.

1. How long was the firearm possessed by a buyer before it was re-sold? Holding a weapon for a short period of time before selling.
2. Buying the weapon for the mere purpose of soon selling it.
3. Were the firearms used or were they kept in new condition in order to get a higher sale price.
4. Being a party to multiple sales.
5. Using the internet to find purchases willing to pay more than the prevailing fair market value for a firearm.
6. Lack of a complete and effective investigation into the background check of the buyer to determine whether the buyer has a criminal record. The issue is not whether the buyer has a criminal record, but whether the background check was avoided in the sell. In fact, the 'buyer' may be an ATF agent.
7. Failure to file the appropriate forms as required by federal law (see below).

Further, ATF agents have let it be known that they do not deem it a defense that the target who bought a gun at Walmart and who sells it two months later has the buyer of that gun sign an affidavit that he has now criminal history and intends to keep the gun and not sell it yet again. In the ATF mission statement for firearms 'gun purchasers' and those who seek to 'divert firearms from legitimate trade to criminal use" are of special concern:

 In addition to aiding the enforcement of Federal requirements for gun purchases, compliance inspections of existing licensees focus on assisting law enforcement to identify and apprehend criminals who illegally purchase firearms.
The inspections also help improve the likelihood that crime gun traces will be successful, since inspectors educate licensees in proper record keeping and business practices. Compliance inspections target licensees likely to divert firearms from legitimate trade to criminal use and dealers with a history of poor compliance.

Further, the FTA in an open letter notes that private sellers have no way to conduct an appropriate background check of a buyer and therefore must file the appropriate forms or be subject to prosecution.

To the best of my knowledge these cases are now being prepared for presentation before federal grand juries for indictments. It's important to note that many Federal firearms violations trigger minimum mandatory sentences under the Federal Sentencing Guidelines.  Anyone being investigated faces immediate arrest and should contact a Clearwater criminal defense lawyer who is well versed in Federal law in the Middle District of Florida.

SHOULD FEDERAL JUDGES HAVE LIFE TERMS EVEN IF IT MEANS PRESIDING OVER TRIALS AT THE AGE OF 104?

Recently the oldest serving Federal Judge in America died at the age of 104; he often said he enjoyed his work but didn't like long trials. It's unclear if he's diligently continuing work in his Kansas Courtroom from the other side thru seances, but in all likelihood his constitutionally defined life appointment terminated upon his death.

U.S. Supreme Court, 1925

Though private employers might think twice before hiring someone who is a mere 67 years old; that's the average age of the members of our Supreme Court. 

Yet those youthful enough to remember a band known as the Rolling Stones might be surprised to find that the average age of Mick Jagger's band is 69, two years older than the Court. Both groups seem to be working hard into old age producing plenty of briefs if not hits.

As the average age of Federal District and Appeal Judges increases Federal Criminal Defense Lawyers may find that Federal Judges sitting on the case would never be tolerated at a law firm arguing the case. Often the huge backload of pending cases in Florida State and Federal Courts is reduced by experienced senior Judges who handle their assigned large caseloads with success.

The constitutional life term of Federal Judges was instituted to protect the Judiciary from the executive and legislative branches. And it has succeeded, but for an occasional imprudent threat of impeachment when a particular congressman disagrees with a Federal decision now and then. 

Yet wouldn't a long term of ten years or even twenty years accomplish the same objective? Or would the limit of time have the unsavory effect of making decisions seem political, a mockery of a fair court, masking even the fairest Judge's decisions with a cloak of selfishness. 

Compare the short term of Federal prosecutors in the Justice Department to the lifetime appointments enjoyed by Federal Judges. 

In the Middle District of Florida in Tampa it's not unusual for a new United States Attorney to be appointed by the President every three years or so. The idea is that the office is more significant than the person holding office and that all of us are better served if the power of that office is not vested in any individual for too long. But that power, the power to prosecute is much more destructive and powerful than a Judge's power, which ultimately rests upon mere words which others are relied upon to obey. 

Perhaps the framers of our constitution, having successfully battled a King, were wise in freeing our Federal Courts with life terms for its Judges. 

FLORIDA FEDERAL PROSECUTORS DROP WAIVER OF COLLATERAL ATTACK & POST CONVICTION PROCESS IN TAMPA BAY PLEA AGREEMENTS

Federal plea agreements in the Middle District of Florida have long contained language which restricts a Defendant's rights to appeal his sentence often rankling Clearwater Federal Defense Lawyers. Recently this law blog noted that the Florida Bar Association was in the process of finding plea waivers restricting collateral attack and post-conviction process could amount to unethical prosecutorial misconduct.

The United States Attorney's Office has sent a letter acknowledging that the plea agreement wording must be changed to the evolving view of the Florida Bar as to what constitutes unethical conduct for Federal Prosecutors and Defense Lawyers. Though you'd think that the very fact each plea agreement contains the same boiler plate language would be sufficient to establish the unfair advantage Federal Prosecutors possess in the Federal Criminal Justice System in the Middle District of Florida.  
The previous plea agreement wording with the new wording for future Plea Agreements in Federal Court in the Middle District of Florida are as follows:

Maoshu Appreciate Lotus

Defendant's Waiver of Right to Appeal and Right to Collaterally Challenge the Sentence.The defendant agrees that this Court has jurisdiction and authority to impose any sentence up to the statutory maximum and expressly waives the right to appeal defendant's sentence or to challenge it collaterally on any ground, including the ground that the Court erred in determining the applicable guidelines range pursuant to the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant's applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution; provided, however, that if the government exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b), then the defendant is released from his waiver and may appeal the sentence as authorized by 18 U.S.C. § 3742(a). 

We are eliminating the references to collateral challenges to the sentence. The new standard appellate waiver will read as follows: 

Defendant's Waiver of Right to Appeal the Sentence.  The defendant agrees that this Court has jurisdiction and authority to impose any sentence up to the statutory maximum and expressly waives the right to appeal defendant's sentence on any ground, including the ground that the Court erred in determining the applicable guidelines range pursuant to the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant's applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution; provided, however, that if the government exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b), then the defendant is released from his waiver and may appeal the sentence as authorized by 18 U.S.C. § 3742(a).

 As you can see the language the U.S. Attorney's office will shove down the throats of federal defendants still effectively eliminates most possible appeals. Until the Florida Bar takes a long look at the underlying notion of a lack of fairness from disproportionate bargaining power between parties in federal plea agreement negotiations, the rule of thumb from your favorite Clearwater Criminal Defense Attorney is for Federal Defendants to understand  before a change of plea to guilty that successful appeals from pleas in federal court are rare.

"OCCUPY COURTS" MOVEMENT PLANS COURT PROSTESTS: WILL THEY EFFECTIVELY SHUT DOWN THE COURTS IN TAMPA ST. PETERSBURG & CLEARWATER?

Another grass roots movement called Move to Amend may soon make siege to local Courts in Tampa, Clearwater, St. Petersburg and Pinellas. The new movement is similar and possibly a branch of Occupy Wall Street and Occupy Tampa, with the intent to impact the federal courts with an attempt to "occupy the courts" in major cities. Your Clearwater Crime Attorney tends toward the view that Juries and Judges should be the ones protesting, since they're the ones stuck with having to listen to lawyers like me all day long.

On Friday, January 20, 2012 the movement plans to Occupy The Federal Courts of Tampa Bay.

In an email Donna Elm of the Middle District Court of Florida said she'd spoken to Federal Chief Judge Conway who said that the Courts bravely "intend to conduct business as usual," and to expect delays. Also, the folks at the Federal Courts noted that everyone including attorneys and defendants should bring identification as there'll be extra security and possibly long lines; and for everyone with Court business to arrive earlier than usual and to keep in mind that:
"Part of our job is believing in American freedoms, and that includes all of them, such as the right to peaceful assembly and protest, as well as the right to open access to tribunals. Please be tolerant, patient, and polite to our visitors." Sounds similar to the way your favorite Clearwater Criminal Lawyer approaches Christmas dinner with family...

So far it is believed that only courthouses in the Federal District Courts in Orlando and Tampa are targeted by the movement at this time. Nonetheless, it is possible that some folks may show up at other courthouses in the Tampa Bay area including the Criminal Justice Center in Clearwater, Pinellas County Florida.

WHO TO KNOW TO BECOME A FEDERAL DISTRICT JUDGE IN TAMPA ST. PETERSBURG CLEARWATER IN THE MIDDLE DISTRICT OF FLORIDA

The Florida Federal Judicial Nominating Commission is accepting applications for a United States District Judge position in the Middle District of Florida an area including Tampa, St. Petersburg and Clearwater, where your favorite Criminal Attorney presides over his golden retriever, Sancho and an occasional glass or more of red wine. Here is an interesting list of the folks who interviewed for the last Federal District Court vacancy. Will they still be interested?

The purpose of the Nominating Commission is to present the President with the best possible applicants, to take some of the politics out of the process, to make the process fair and transparent and to find a Judge whom the federal practice lawyers on the Commission trust to be - well, to be what exactly - fair and impartial or malleable? Unfortunately those members of the Commission who are attorneys are not barred from Federal practice making a farce of the entire process. Why have attorneys who practice in Federal Court on the Commission? Why have attorneys on the Commission? Isn't that an automatic conflict of interest? Here is a list of the members of the the Middle District of Florida Nominating Commission.

The vacancy was created when Judge Gregory A. Presnell’s gained senior status. Though Federal District Judges are appointed for life, they can opt to take on a less stressful schedule by taking senior status. 
The oldest sitting Federal Judge is Judge Wesley Brown of Kansas whose one caveat is "no lengthy trials" which makes sense at age 103 and if your favorite Pinellas crime lawyer was that old he'd be avoiding lengthy trials too... 
Anyway, applications for the judicial appointment can be obtained from the Florida Bar Online or at any Costco with a $50 membership fee. Completed applications must be received by the Commission's Statewide Chair and each Commission member in the manner specified by the Rules of Procedure by 5 p.m., Wednesday, January 18, 2012.

Potential Judges -- get to work on that application & brush up on those interviewing skills.

Vincent van Gogh, Man Writing Facing Left, 1881

FEDERAL PLEA AGREEMENT WAIVER OF APPEAL BITES THE HAND THAT CREATED IT

Federal Criminal Law attorneys often lament the lack of real bargaining power in plea agreements between the Government and Defendants in the Middle District of Florida - and in the case below the Southern District of Florida - often resulting in lopsided plea agreements with bloated provisions which require Defendants to waive their right to appeal among other unsavory actions. Usually, the result is catastrophic for an effective federal appeal should there be any subsequent sentencing issues in need of resoulution. In the case below the waiver of appeal in a Plea Agreement bites the Governments hand allowing the 11the Court of Appeals to reject the Government's attempt to increase the Defendant's sentence upon appeal.

United States v. Arthur Smith, No. 10–15044 

( September 7, 2011) Appeal from the United States District Court for the Southern District of Florida Panel: Tjoflat, Carnes, and Fay, Circuit Judges. Carnes, Circuit Judge: Affirmed Writing that “sentence appeal waivers serve interests of the judiciary as well as interests of the government and defendants,” the Eleventh Circuit yesterday refused to allow the government to withdraw its previously filed brief – in which it had argued that appellant Smith’s appeal waiver applied to preclude relief – and refused the government’s request to vacate the sentence and remand for resentencing under the Court’s recent decision in United States v. Rojas, 645 F.3d 1234 (11th Cir. 2011). The Court held hold that claims under the Fair Sentencing Act of 2010, like any other type of sentence claim, can be waived by a knowing and voluntary appeal waiver, noting that “a waiver would be worthless if it covered only issues that lacked merit.” Because it found that Appellant Smith’s appeal waiver was knowing and voluntary, it affirmed his sentence. The full text of the decision can be found here: 
http://www.ca11.uscourts.gov/opinions/ops/201015044.pdf 


Federal Crimes Trial Lawyer & Criminal Defense Attorney in Florida

USING THE SENTENCING COMMISSION REVIEW TABLE FOR UNIQUE SENTENCING ARGUMENTS

Many thanks to Amy Baron-Evans for this unique argument at federal sentencing for clients showing the court the effects of disparity of sentences for similar acts and there respective recidivism rates. As defense lawyers in the Middle District of Florida are aware these arguments typically are met with indifference by our local Judges; however, its great to throw in as an additional point where a Judge is leaning in your direction anyway and is searching for any reason to reduce the sentence - say, within the framework of the personal characteristics of your client:

The Commission's Fifteen Year Review reports that the recidivism rate of defendants sentenced as career offenders based on prior drug offenses "more closely resembles" the recidivism rate for offenders in the otherwise applicable criminal history category.  See U.S. Sent’g Comm’n, Fifteen Years of Guidelines Sentencing:  An Assessment of How Well the Federal Criminal Justice System is Achieving the Goals of Sentencing Reform 133-34 (2004). I just noticed this Table 14 in the Commission's 2010 Sourcebook. You can find this at the following place ------ --------- --------http://www.ussc.gov/Data_and_Statistics/Annual_Reports_and_Sourcebooks/2010/Table14.pdf  Using it, you could argue that the average sentence for a drug trafficker sentenced as a career offender is 167 months, but for a defendant in criminal history IV, for example, it's 98.3 months, or 60% of the career offender sentence. Or, for example, if your client's instant offense is robbery but he is a career offender based on drug priors, the average sentence for a robber sentenced as a career offender is 156.3 months but for a defendant in criminal history IV, it's 71.5 months, or 45% of the career offender sentence. There are lots of ways you could use this table in career offender and other cases.  It shows average sentence length for primary offenses by criminal history category.