BEST EARLY RELEASE STRATEGY IN FEDERAL CRIMINAL SENTENCING IN THE MIDDLE DISTRICT OF FLORIDA

After the initial sentencing in federal court it is still possible to secure a second sentencing to obtain a better sentence under Rule 35. This is true even if your client has already received a lower sentence under the 5K provision for co-operation. Typically in the Middle District of Florida the Government will not file for a Rule 35 sentencing departure unless there has been extraordinary work from the defendant on the Government's behalf. 

A typical example of extraordinary co-operation after conviction and sentencing for a federal crime would be the giving of testimony to a grand jury or federal trial jury against a fellow co-conspirator in a complex criminal case that results in an indictment or a conviction of a federal crime. In one significant federal criminal case in the Middle District of Florida that I handled a defendant was well rewarded by prosecutors after he lured a co-conspirator from a country without an extradition treaty with the United States to a country with an extradition treaty. 

Federal Prison Drug Program for early release?

Another significant way to reduce the release date after sentencing is for the defendant to successfully complete the federal drug program while in federal custody. Typically there is a long waiting list for acceptance into the program. The federal inmate drug program itself includes classes that must be taken over the course of about eighteen months or so while in custody. The benefit is an entire year early of the sentenced release date. 

Unfortunately, because of the time it takes to complete the course and the waiting list, the beneficiaries of this federal prison program tend to be those defendants convicted of drug trafficking cases. Also, the program is open only to those federal prisoners who have established a drug problem with addictive behavior at sentencing or thru the Pre-sentencing Report. All too often defendants will mischaracterize and minimize their addiction problems to the probation officer assigned to conduct and complete the Pre-sentencing Report (PSR) with the result that the Bureau of Prisons (BOP) as directed by federal law will not grant access to the drug treatment program.

If the PSR does not reference any addictive behavior that can be proven, then the initial sentencing should include evidence to the federal district judge of addiction thru the testimony of the defendant, family, friends, psychiatrist or therapist for the judge to make an informed finding on the record that the addiction exists and recommend the drug program. It's also important to formally request that the judge amend the PSR to include the reference to the formal finding of addiction. Otherwise the BOP may not have ready access to the judge's decision that overruled the probation officer's assessment in the PSR.

These examples show that it's necessary to have an effective strategy before the initial sentencing which successfully will lay the groundwork for either a more beneficial second sentencing or early release thru Bureau of Prisons programs. Because the vast majority of federal defendants are forced to plead guilty, effective defense lawyers should plan early release strategies within and outside the federal sentencing guidelines well before sentencing in federal criminal in the Middle District of Florida in Tampa. 

HOW TO REDUCE VALUATION OF GOODS IN FEDERAL CRIMINAL CASES FOR BETTER SENTENCING RESULTS

In many federal and Florida criminal cases the dollar amount of a scheme to defraud or theft becomes an important issue at sentencing. In the Middle District of Florida at the Tampa Federal Court many federal crimes are parsed by way of damage done. The federal sentencing guidelines determine economic damage based on dollar calculations. Sometimes these calculations call into question the sanity of the guidelines.

An Innocent Florida Lobster of Great Value

A fellow lawyer sent me a question about how the federal government values lobsters that illustrates the absurdity of federal criminal law.

I have a question about the valuation of goods for purposes of calculating the sentencing guidelines. 

Defendant illegally harvested Florida spiny lobsters in the Florida Keys. Sold them to local seafood stores for $5.50 per pound. He was surveilled and videotaped while committing the illegal harvesting. He was arrested pursuant to the Lacey Act and pled guilty to a federal misdemeanor.

If lobsters are valued at $5.50 per pound the guidelines allow probation, but the PSR values the lobsters at around $24 a pound because there is a big market for them in Asia if they are shipped live to say, Hong Kong, for example.
The federal government is keeping the fishing boat (that’s punishment enough one would think).  At the higher value the guidelines call for incarcerationThe probation officer who wrote the Pre-sentencing Report refuses to disclose what source or information was used to value the lobsters at $24 per pound.Any suggestions?
Thanks

As you can see value in federal terms is all about dollars even when talking about the illegal harvesting of Florida lobsters. The absurd result of the probation officer's findings for lobster value are similar to what happens in federal criminal cases all of the time. FBI and DEA agents are notoriously off the mark when confronted on cross-examination with valuation issues in a wide variety of criminal cases involving the street value of drugs, the value of stolen property or actual monetary fraud loss.  

Perhaps the probation officer in the lobster case should also take into account currency fluctuations, the strength of the yen to the dollar and the financial disarray in the Eurozone. So how should value be determined? Doesn't the nearest local value make the most sense? Doesn't it matter what the Defendant thought the lobsters were worth when he sold them? We know what he thought they were worth, exactly what he was paid, $5 per pound. 

But for some probation officers and federal prosecutors that ready knowledge is not enough. Instead the value calculation includes added airfare and effort with the not inexpensive means to keep the lobsters alive all the way to Asia, which happens to be the most expensive market in the world. Clearly, an objection and Sentencing Memorandum should be filed detailing for the federal judge the ridiculous analysis of the Pre-sentencing report (PSR) and the need to not give preference to the prosecution in sentencing.

HOW TO STOP JUDGES FROM GIVING PREFERENCE TO PROSECUTORS IN FLORIDA CRIMINAL SENTENCING

Since time immemorial under common law sentencing decisions have not been made by juries, nor by defense attorneys, nor thankfully, by prosecutors. Yet many judges either from laziness or abject cowardice defer to prosecutors at the time of sentencing. 

Fair Judge of more than Accent

In the Tampa Bay criminal courts in the Clearwater courthouse most prosecutors are assigned to specific divisions. Each criminal division has its own presiding judge. The judges see the prosecutors almost every day, see them when a search warrant needs to be signed at night, see them occasionally on weekends at advisories for the newly arrested's bond hearings, see them at parties for court personnel such as the bailiffs or the judge's judicial assistant or the judge herself. In short the judges trust and know the prosecutors much better than they do private defense lawyers. Clearly, prosecutors should be assigned cases randomly in different divisions so that they do not have an unfair advantage during sentencing hearings.

But besides trust and knowledge the prosecutors also have leverage over judges. They have the ready means to appeal unlawful sentences that many defendants can not readily afford. And the implicit threat of possible appeal forces some judges to abandon fairness in favor of the easier path of accommodating the prosecutor. This could be stopped by having the prosecutors office share the costs of any appeal made by any party or by defraying the expenses of appeal with additional damages for time, expense and aggravation when defendants successfully win a criminal appeal.

In federal court in the Middle District of Florida in Tampa the judges would at first glance appear to be bound to give due consideration in sentencing to the federal sentencing guidelines as well as to the Pre-sentencing Investigative Reports (PSR) created by federal probation officers at the behest of federal magistrates for the district judges who actually preside over each sentencing. The goal for a PSR is to present for the federal judge an unbiased view of the defendants life, criminal history and criminal conduct while also establishing an accurate assessment of how the federal sentencing guidelines should be calculated. 

Yet the federal probation officers tasked by the court to write each PSR are anything but unbiased. They use the case reports from case agents from the FBI and DEA with conversations with federal prosecutors to determine how the sentencing guideline range for each federal defendant should be implemented. They often have little or no contact with defense counsel until after the PSR is filed. The defense attorney may object to the report in writing, but often the damage has been done. And usually the PSR will not be amended unless the federal prosecutor agrees. 

Clearly, the federal sentencing guidelines should bar any contact, collusion or conversations between prosecutors or case agents and probation officers assigned to complete the PSR. Instead both the prosecutor and the lawyer for the federal defendant should give a written proposed PSR with the officer. If there were fair Pre-sentencing Reports, fairer sentencing based on compassion would result. 

Ultimately the criminal justice system in Tampa Bay, Florida needs unbiased judges who have the courage to sentence defendants in a fair manner. And we need defense lawyers who aren't intimidated by the process nor afraid to demand fair sentencing for criminal defendants.

A $500 MILLION BANK NOTE SCHEME TO DEFRAUD IS SO RIDICULOUS & OUTRAGEOUS JUDGE GIVES NO JAIL

Your favorite Clearwater Criminal Defense Lawyer feels fortunate when fate, providence and sheer blind luck somehow combine to send that stray twenty dollar bill his way close enough to pocket it now and then.
How much better it would be to possess a very rare and unusual $500 million United States Treasury Reserve Bank Note from the 1930s. Unfortunately the Florida Defendant's fancy U.S. Treasury Reserve Bank Note proved to be fake. 

$100,000 Bill, 1934: Largest Ever Issued

The man was charged with Federal Scheme to Defraud when he supplied not only the bank note but along with it, an actual old bank safe vault holding the note providing an authentic provenance during what must have been a weighty FBI sting. 
The federal sentencing guidelines as reflected in the Presentencing Investigation Report recommended at least 42 months of Federal prison. 

Press Reports note that the Florida Federal Judge decided to show mercy for an unusual reason not normally found in the Federal Sentencing Guidelines instead:

"It becomes almost laughable," the judge said. "To me, it doesn't promote respect for the law to send someone to prison ... for doing something so silly and outrageous."
The judge sentenced Ayison to six months of house arrest, five years of probation and 250 hours of community service and must also undergo a psychiatric evaluation...

That psychiatric evaluation sounds like a great idea, but so does showing some merciful discretion in a case like this where the absurd facts clearly led the Court to consider that jail in this case was inappropriate.

There's a lesson here for defense counsel. If an underlying criminal charge or the facts and circumstances of a case gives the judge a smile, he'll find it difficult to give the Defendant prison. More of the best Judges are wisely using their sentencing discretion to reduce unnecessary prison time in cases like this one.

Your Clearwater Criminal Defense Attorney suggests that when a guy comes to you with a fancy antique safe and a $500 million United States Treasury Bank Note, you should remember that Federal prosecutors told the Judge that there is no such thing as a genuine half-billion dollar U.S. Bank Note, but that antique safe might be worth something.

WHEN CAN ILLNESS RESULT IN COMPASSIONATE RELEASE FROM FEDERAL PRISON OR TAMPA & PINELLAS JAILS IN FLORIDA?

The Federal Bureau of Prisons (BOP) is known for rarely if ever allowing early release for Federal prisoners for medical illness. As a general rule only FDA approved drugs with a proper Doctor's prescription are allowed within Federal Prisons, even if your favorite Clearwater Criminal Defense Lawyer tries to hide some in a birthday cake with the nail file.

Joseph Wright, Experiment on Bird, 1768

It's important for defense attorneys to understand the BOP regulations for drugs that can be administered in Federal Prison. I had a client who had committed in access of half a million dollars in fraud, scored a minimum of 96 months in jail on the Presentencing Report and had a pending Trafficking in Marijuana from New Orleans; he was also a very sick man with hepatitis C.
At sentencing I argued that the Defendant was bravely being a human guinea pig by taking experimental non-FDA approved drugs from Shands Hospital. And further at sentencing we established that he'd bravely been testing the new drugs which could kill him yet at the same time could be the only thing keeping him alive. Further, since the experimental drugs were not FDA approved, no Federal Prison could give the drugs to him and the kind Doctors at Shands wanted to continue their experiments on the Defendant. The Judge over the Government's strong objections did not sentence the Defendant to any prison time at all.

But what if a Defendant is already in Jail. How do you establish that he is so gravely ill that he should be released? Here from defense attorney Amy Baron-Evans is a success in forcing BOP to release an inmate based on compassionate release:

BOP rarely files a motion for early release under 18 U.S.C. § 3582(c)(1)(A) when an inmate has a terminal illness or for other extraordinary and compelling reasons under USSG 1B1.13.  In this case, the inmate, Phillip Smith, was diagnosed with acute myelogenous leukemia in August 2011, but BOP twice refused to file the motion because, it said, his criminal history outweighed his medical needs (and imminent death). Phillip contacted his lawyer, Ruben Iniguez, and Ruben and Steve Sady filed a motion with the court, contending that BOP was putting itself in the position of the judge, not filing the motion unless it thought the motion should be granted. After a couple of weeks of litigation, BOP agreed to file the motion, and the judge immediately ordered Mr. Smith’s release on March 12, 2012, seven months after the motion should have been filed.  Mr. Smith gave a videotaped interview from home on April 2 and died April 9.  Hundreds of people die of natural causes in BOP custody every year but BOP filed only 55 motions from 2009 to 2011.  This was an unusual case in that the client called his lawyer and the lawyer took action that put pressure on BOP to file the motion. 

 The standards for Federal Prisons and State of Florida Prisons vary. For information on the process for releasing inmates early in Florida Prisons, Pinellas Jail or Hillsborough because of life threatening illness or for other reasons humane contact a Clearwater Criminal Defense Attorney.