FEDERAL COURT FINDS FLORIDA'S DRUG LAWS UNCONSTITUTIONAL WILL STATE JUDGES AGREE?

Will Florida's 6th Circuit Judges in Pinellas, Tampa Bay, St. Petersburg, Clearwater and Largo Florida have the political courage to follow Judge Scriven's recent well reasoned federal decision? Miami Judges are finding Florida Drug laws unconstitutional, but the consequences for their decisions are less severe than in Tampa Bay.  So the question might be better urged as must the judges follow the law as given by the Federal Judge? The answer will come from how the Supreme Court of Florida interprets Florida Drug law.

The applicability of Judge Scriven's decision in Shelton -- that the Fla Drug statute is unconstitutional on its face -- cannot be overstated -- for state and federal cases. Some of you that you have raised this issue before and are glad for the opportunity of raising it again while working on ideas for its application in federal cases -- which regularly apply enhancements based on prior Florida drug convictions. 

Here are some interesting ideas about the federal ruling finding Florida's drug laws unconstitutional:

The court noted that no other strict liability statute carrying the penalties of the magnitude of § 893.13 has been upheld under federal law... the court ruled that § 893.13 regulates inherently innocent conduct because it does not require even a minimal showing that the Defendant knew he was delivering any illicit substance as an element of the offense charged. The court explained that there is along tradition of lawful delivery and transfer of containers that might contain substances – carrying luggage on and off public transportation, bags in and out of stores, carrying book bags and purses, transporting boxes via commercial transportation. 

The bag is then given to another for safekeeping. Caught in the act, the hapless victim is guilty based upon the only two elements of the statue: delivery (actual, constructive, or attempted),and the elicit nature of substance. The victim would be faced with the Hobson’s choice of pleading guilty or going to trial where he is presumed guilty because he is in fact guilty of two elements. He must then prove his innocence for lack of knowledge against the permissive presumption the statute imposed that he does in fact have guilty knowledge. Such an outcome is not countenanced under applicable constitutional proscriptions.

What this boils down for Clearwater Federal Defense Lawyers is that Judge Scriven believes Florida law allows a Defendant to be prosecuted and found guilty of possession of drugs even if the Defendant has no knowledge of the drugs.  Knowledge is the linchpin of any criminal act. How can someone be guilty of possessing drugs unless there's proof the person knew of the drugs and without knowledge how could there be real possession?

DECONSTRUCTING FEDERAL MIDDLE DISTRICT OF FLORIDA SENTENCING GUIDELINE ENHANCEMENTS

Clearwater Criminal Defense Attorneys know that the federal sentencing guideline amendments promulgated by the Sentencing Commission pursuant to the congressional directive in the Fair Sentencing Act can be challenged -- and the aggravators should be challenged. Yet challenging the aggravators is an art which sometimes requires counterintuitive thinking and use of federal case law to produce the best possible result at a Federal Sentencing. 

The new federal guideline aggravators include upward adjustments based on the degree of violence involved in a federal crime, maintaining an establishment, and super role aggravators, which as the name implies is not something that a Defendant wants to have happen at sentencing. 

Clearly America needs to learn about decriminalization of nonviolent drug crimes as in Europe if the true goal of Congress is to provide fair sentences. More needs to be done to allow prisons to use compassionate release to allow sick inmates to serve less time in prison. And long jail terms should be given to mainly to violent criminals only rarely giving long sentences to white collar criminals who could be shamed into good behavior by other means than jail, especially at a time when the crime rate in Tampa Bay is falling as in the entire United States. Yet many prisoners spend the best part of their lives in prison because of the harsh drug laws with minimum mandatory sentences imposed by the Federal Sentencing Guidelines with too little discretion given to our Federal Judges.

Below are excerpts from the Sentencing Resource Counsel explaining how to challenge these aggravating factors:

Deconstructing the New Guideline Enhancements Implemented in Response to the Fair Sentencing Act of 2010

Sentencing Resource Counsel Project July 22, 2011

The Fair Sentencing Act of 2010 increased the quantity thresholds for the five- and ten- year mandatory minimums under 21 U.S.C. §§ 841(b)(1) & 960(b) in crack cases and eliminated the five-year mandatory minimum for simple possession of crack cocaine. See Pub. L. No. 111- 220, §§ 2, 3 (Aug. 23, 2010). The resulting18:1 powder-to-crack ratio reflects political compromise rather than an empirically based policy judgment about the relative harms of crack and powder cocaine. 

The Act improves fairness but cannot be said to “restore fairness” when fairness in federal cocaine sentencing never existed. These ameliorative changes came at a significant price. Congress also directed the Commission to ensure that the guidelines provide penalty increases for a variety of aggravating factors for all drug offenses. See Pub. L. No. 111- 220, §§ 5, 6. It directed an enhancement of at least two levels if the defendant used or threatened violence, id. § 5, bribed a law enforcement officer, id. § 6(1), or maintained an establishment for the manufacture or distribution of drugs, id. § 6(2). It also directed an enhancement of at least two levels for defendants who receive an aggravating role enhancement and who engaged in other specified conduct, id. § 6(3)(A), such as using another person through fear, friendship or affection to engage in illegal conduct, id. § 6(3)(B)(i), or distributing drugs to, or involving, a person under 18, over 64, or pregnant, id. § 6(3)(B)(ii)(I)-(II), or distributing drugs to, or involving, a person unusually vulnerable due to physical or mental condition or particularly susceptible to criminal conduct...

This paper provides a brief overview of why guideline increases promulgated in response to a congressional directive are unlikely to advance the purposes of sentencing. It then demonstrates that the guideline increases promulgated in response to the directives in the FSA do not advance the purposes of sentencing, focusing first on the two new enhancements most likely to impact your cases (use or threatened use of violence and maintaining a drug-involved premises), how
1 See United States v. Williams, __ F. Supp. 2d __, 2011 U.S. Dist. LEXIS 48599, at **53-100 (N.D. Iowa Apr. 7, 2011) (Bennett, J.) (describing in exhaustive detail the historical and legislative backdrop of the 18:1 ratio and the absence of rationale for it); United States v. Shull, __ F. Supp. 2d __, 2011 2559426 (S.D. Ohio June 29, 2011) (excellent review of same and war on drugs)...The Commission amended the guidelines in response to these directives, and ways to argue that the resulting enhancement either does not apply or should not be followed as a matter of policy. When relevant, important language and commentary serving to limit their scope is highlighted.For completeness, the two new provisions for defendants receiving the minimal role adjustment under Chapter 3 are set forth, with important language highlighted.

And as always it's unfortunate but sadly true that the Guideline Enhancements directed by Congress are very unlikely to reflect sound policy judgments in the real world. So it's important to bring to the Court's attention other factors which may be used by the Court to lower a sentence even when in practical terms an enhancement applies.

Unlike the Sentencing Commission, Congress is under no obligation to ensure that its policies meet the purposes of sentencing, to conduct empirical research, or to consult with Judges, Prosecutors nor especially Clearwater Criminal Defense Lawyers. Nor is Congress obliged to ensure that its enactments are consistent with each other, or with the guidelines, or with any overarching theory of how to best achieve the purposes of sentencing. Congress is free to legislate piecemeal in response to a highly publicized case, or in response to lobbying by the Department of Justice or other interest groups seeking sentence increases for purposes other than those set forth in § 3553(a).
The ink had hardly dried on the first set of guidelines when Congress began directing the Commission to take particular actions through what are referred to as “directives,” both general and specific. A general directive instructs the Commission to study a particular issue and report back to Congress or amend the guidelines if the Commission determines it is needed. Specific directives, however, require the Commission to take particular actions. Specific directives, unlike mandatory minimums, are binding on the Commission, and this is so even if they conflict with the goals of the SRA. See United States v. LaBonte, 520 U.S. 751 (1997).

IS IT ETHICAL FOR A PROSECUTOR TO MAKE THREATS & ADD CRIMINAL CHARGES IN TAMPA BAY, FLORIDA?

Clearwater Criminal Defense Attorneys are often asked, when can it be established that prosecutors have acted in bad faith? You might think threats from the prosecutors would be sufficient.  You could think that making those threats real be the filing of additional charges could be enough, but this America and you'd be wrong. And worse this is Tampa Bay, Florida so you'd be doubly wrong.
Here is an example from a recent federal court case where the court clearly found bad faith on the part of prosecutors where a Defendant is prosecuted more harshly because of non-criminal events that occurred after the original indictment was filed against him.
In this case a Defendant was warned that if he filed a motion to suppress there'd be a 'seismic shift' in his prosecution. Meaning that all hell would break loose which it did when the government filed a superseding indictment which contained additional charged counts against the Defendant.
Well that's what the trial court thought. The appeals court made a vastly different decision noting that the Federal District Court denied due process to the prosecutors in not granting them notice nor an opportunity to explain their actions no matter how corrupt the prosecution. 

 The Drug Enforcement Administration had conducted an undercover investigation of Shaygan after one of his patients died from a lethal combination of prescription and illegal drugs. After Shaygan’s arrest, the government discovered additional evidence of violations of federal law, and Shaygan moved to suppress statements he had made to federal agents who, Shaygan contended, had violated his right to counsel.In response to that motion, Cronin warned Shaygan’s lead counsel of an impending “seismic shift” in the prosecution of Shaygan. Soon afterward, the government filed a superseding indictment with additional charges and supported those charges at trial with the testimony of several witnesses and documentary evidence.
Near the end of trial, the district court allowed a second cross-examination of two witnesses for the government after it came to light that those witnesses had cooperated in a collateral investigation about potential witness tampering by members of the defense team. The district court instructed the jury that the reopening of cross-examination was necessary to address misconduct by the government. In closing argument, Shaygan’s counsel compared that alleged misconduct to the Salem witch trials.
After the jury acquitted Shaygan of all charges, the district court held an inquiry about sanctions under the Hyde Amendment. The district court found that the prosecutors “acted vexatiously and in bad faith in prosecuting Dr. Shaygan for events occurring after the original indictment was filed.” The district court awarded Shaygan attorney’s fees and costs, publicly reprimanded Cronin and Hoffman, and referred those attorneys to disciplinary authorities. On appeal, the United States, Cronin, and Hoffman contended that the district court abused its discretion and committed fundamental errors. The United States argued that the district court erroneously ruled that the superseding indictment was “brought vexatiously, in bad faith, or so utterly without foundation in law or fact as to be frivolous,” and that the district court erroneously concluded that an award of attorney’s fees and costs under the Hyde Amendment could be supported by discrete incidents of bad faith, such as discovery violations, without regard to the overall litigating position of the United States. Cronin and Hoffman argue that the district court violated their right to due process, under the Fifth Amendment, when it denied them notice and an opportunity to be heard before it entered public reprimands of them. The Eleventh Circuit agreed with these arguments, and held that the district court abused its discretion when it imposed sanctions against the United States for a prosecution that was objectively reasonable, and that the district court violated the constitutional right to due process of the two lead prosecutors, Cronin and Hoffman, when it denied them notice of any charges of misconduct and an opportunity to be heard.

The process of Federal Sentencing even when a Defendant pleads with a waiver of appeal for collateral attack of the prosecutor is deemed unethical by the Florida Bar, but for threats by prosecutors to be carried for the mere filing of an evidentiary motion to suppress goes much further. Even if somehow legal, isn't it unethical conduct? 
Leaving your Clearwater Criminal Lawyer with this sad insight about our Federal criminal justice system in Florida: even the threat of a 'seismic shift' combined with action on that threat by prosecutors leveling additional charges was not sufficient on it's face to bring the prosecutors to heal nor to establish Bad Faith prosecution.

FEDERAL SENTENCING COMMISSION CASE LAW SUMMARIES FOR TAMPA BAY FLORIDA

For Clearwater Criminal Attorneys and their unfortunate clients who find themselves trapped within the legal morass of charged misconduct or federal grand jury investigations within the Federal Middle District of Florida, which includes Tampa, Largo and St. Petersburg Florida, the Sentencing Commission is now publishing case law summaries by circuit. The objective at Federal Sentencing is to use the Federal Guidelines for the best unique sentencing arguments for mitigation of a defendant's sentence. The Federal legal summaries are merely that, just summaries of legal decisions.

Though many of the summaries may be useful in urging a judge to accept leniency at sentencing and to provide the Judge with reasons for a fair Federal Sentence under the Federal Guidelines. 
Keep in mind that Commission staff wrote the legal summaries. The summaries are therefore a reflection of how the staff members interpret the federal guidelines promulgated by the sentencing commission. The interpretations can be useful in making arguments to judges on how the federal guidelines should be interpreted during federal sentencing especially in federal drug crimes or federal violent crimes where harsh federal mandatory minimum sentences destroy lives.
But the federal sentencing guidelines themselves are always definitively interpreted by the federal courts such as the Eleventh Circuit Federal Court of Appeals, in Tampa's Middle District of Florida not by the lawyers on the staff of the commission nor by Clearwater Federal Criminal Lawyers.

STANDARDS FOR EYE WITNESS IDENTIFICATION IN FLORIDA

Many studies show that eye witness testimony is often not as reliable as the witness believes. 

Now the law is catching up to scientific studies. And at least one Clearwater Criminal Defense Attorney believes a recent court opinion should be applied in Tampa Bay Criminal Courts even if it is from the New Jersey Supreme Court. How about a special Florida jurisdiction for what's right? It's certainly persuasive. It cites countless studies and scientific research on how memories work and how testimony can be flawed and how juries can make mistakes. In short, the court held:

The current legal standard for assessing eyewitness identification evidence must be revised because it does not offer an adequate measure for reliability; does not sufficiently deter inappropriate police conduct; and overstates the jury’s ability to evaluate identification evidence. Two modifications to the standard are required. First, when defendants can show some evidence of suggestiveness, all relevant system and estimator variables should be explored at pretrial hearings. Second, the court system must develop enhanced jury charges on eyewitness identification for trial judges to use.

The court is right to look at the suggestiveness of the identification as a factor in reliability. If you need a reliable Clearwater Criminal Lawyer to look at the reliability of a Florida eye witness give me a call.

SHOULD JUDGES CONSIDER PASSENGERS ASSUMPTION OF RISK IN MANSLAUGHTER CASE IN TAMPA BAY, FLORIDA?

A recent DUI manslaughter case in Pinellas County pits two sets of parents against each other. One set of parents have lost a child to death, the other set of parents may lose their child to the criminal justice system with a Judge and at least one Clearwater Criminal Defense Lawyer wondering what Solomon might do; cut the Defendant in half?
The two USF students had been friends since kindergaten till the terrible night when an automobile accident took the life of one while the other was driving under the influence of alcohol (DUI).
The driver has shown remorse, talking thru her tears about the dangers of alcohol and the loss of her best friend to high schools and college students.
Should the survivor be sent to prison? The parents of the dead child want fifteen years. The parents of the living child want no prison at all. The prosecutor wants ten years.
Clearly the driver should be punished. However, DUI Manslaughter may be one of the few crimes where an assumption of risk by the victim should be considered in sentencing.
The victim also chose to drink that night. The victim chose to get into that car knowing that her friend was impaired, under the influence and likely DUI. Shouldn't her decisions have some impact on the outcome of the case?
If so, jail should not be as inevitable as mercy. If your seeking the best possible arguments in a Tampa Bay murder case contact a Clearwater Criminal Defense Attorney.