Pinellas Circuit Judge Andrews recently found that a nosey police officer’s testimony was too incredible to be believed when the officer said he could smell marijuana in a vehicle he wanted to search for drugs. As often happens in Florida although the vehicle did have cocaine when searched without a warrant no marijuana was found. Officers in Florida are taught to use the smell of marijuana as a pretext to search vehicles without taking the time, paperwork or probable cause for a proper search warrant.
In his written opinion the judge noted that “… it stretches the limits of credulity for this court to believe that the search of the defendant’s vehicle was based upon the odor of marijuana.” What then, one wonders, was the search based on and why did officers choose that particular vehicle to stop?
Of the many St. Petersburg Police officers at the scene of the pulled over SUV only one testified that he could smell marijuana albeit mixed with vanilla air freshener to justify the search. Clearly when other officers could not readily obtain a search warrant, this officer decided that breaking the law justified an unlawful search. And let’s not mince words – the officer did break the law. First, the police officer committed at least a trespass and possibly an armed burglary of the vehicle since he had neither a search warrant nor permission to enter the vehicle. Second, the officer while testifying that he smelled marijuana may have committed the crime of perjury if he knowingly lied under oath during the Motion to Suppress evidence.
This manufacturing of evidence has been a recurring problem with Tampa Bay police officers. The only way for it to end is not only for heroic judges to throw out cases based on lies, but for the police departments to punish those who do it.
I had a case in the Middle District Court in Tampa in which the initial stop was based on the very strong smell of marijuana. Yet when the trunk was opened without a search warrant there was no marijuana at all only a large quantity of methamphetamine. Despite suggestions from the government agents that marijuana must recently have been in the drunk, but offloaded just before the stop, the more reasonable likelihood is that the agents simply were not being honest.
Each defense lawyer in Pinellas County, Florida should be on the look out for any cases involving this officer. All of his pending cases should be reexamined by the state attorney’s office to determine if the factual basis for criminal charges is corrupt. Further, every plea and every conviction involving his work should be investigated. If it is found after an investigation that the officer knowingly lied to the Judge or entered the vehicle inappropriately then St. Petersburg Police Department should not only fire the officer, but arrest him for perjury, trespass or armed burglary.
What does it mean when a judge at sentencing finds that a defendant is adjudicated guilty? In real terms it may trigger time in prison, loss of employment as well as future job opportunities combined with the loss of basic rights of American citizenship such as the right to vote, the right to possess a firearm and the right to travel. Yet far too often defendants are cast out of society by those two simple words uttered by the sentencing judge -adjudicated guilty.
Adjudication of guilty means that the judge upon looking at all of the facts and circumstances of a case has made a finding that there is in fact guilt. It doesn’t always have to be that way. It’s possible for the judge to avoid giving a direct adjudication of guilt in many criminal cases.
Prosecutors will ask the sentencing judge for an adjudication of guilt based on the following factors:
1. The more serious the underlying criminal conduct, the more likely it is that an adjudication of guilt will be ordered. In fact, for many criminal acts Florida statutes specify that a judge must make a finding of guilt. For example, a Clearwater, Florida judge in Pinellas County can not withhold adjudication of guilt in a murder case nor a sexual battery case, yet the judges hands are also tied in some less significant cases when the facts justify it such as theft, battery on a law enforcement officer and DUI. Upon making a determination that there is a statutory requirement for an adjudication of guilt under the charged offense, it may be necessary for defense counsel to negotiate with the prosecutor for a charge which is less severe that allows the court more discretion in granting a withholding of adjudication.
2. The prosecutor and sentencing judge by Florida law must inform the victim of any potential change of plea and allow the victim to be present at the time of sentencing. In practice this means that the victim’s consent is often required for a sentence which does not include an adjudication of guilt.
3. But of even more importance is the prior record of a defendant. If a defendant has any kind of priors even if only a misdemeanor rather than a felony, then the likelihood of an adjudication of guilt in any given case escalates. This is true because most judges view an adjudication of guilt as the standard plea with anything less than that being a gift. And in a sense this is true under Florida law in that once there has been a withholding of adjudication in a prior case the law is framed to make in more difficult for the sentencing judge to again withhold adjudication without justification on the record. After all, the reasoning goes, the defendant was already given one chance, why should he be given another? In these cases it’s important to establish how the defendant has changed and why the previous case should not be counted as a prior for finding an adjudication of guilt.
When possible a withholding of adjudication is always preferable to an adjudication of guilt. It’s even in the best interest of the client to ask the sentencing judge for a more punitive sentence if the court will grant a withholding of adjudication. If the plea bargain called for an adjudication with a period of probation and related requirements, it would be well worth exploring possibly adding community service or extended probation for the opportunity of avoiding an adjudication of guilt in the case. Sometimes this can be tough for a client to swallow, yet it’s part of what good lawyers should be doing – finding the best possible outcome for their client by persuading the prosecutor and judge during plea negotiations that everyone benefits from a second chance.
Tough new standards for federal law enforcement investigators such as the FBI, DEA and ATF now set a presumption that agents and federal prosecutors must record statements made by individuals while in custody.
The policy as defined in the memo also encourages agents and prosecutors to record conversations with suspects even where the presumption does not apply. Although the memorandum expressly states that the policy is solely for internal Department of Justice guidance and does not “… create any rights or benefits, substantive or procedural, enforceable at at law … by any party against the United States…” the memorandum would seem to be useful if found admissible as evidence of prosecutorial and law enforcement misconduct when statements are not recorded.
For far too long federal law enforcement agents have abused the rights of defendants by failing to properly record custodial conversations. The agents typically fail to record the conversations because they don’t want defense lawyers nor judges and juries to hear the actual words of defendants. Instead prosecutors present the agents and their contemporaneous notes of statements as the best proof of the statements. This has lead to many cases in which agents and prosecutors manipulate statements.
In one federal trafficking in cocaine case I handled in the Middle District of Florida in Tampa, the DEA and FBI agents failed to even present my Russian speaking client with a readable Miranda form nor with an unbiased translator. They also failed to record the conversation in order to manipulate my client’s statement. At trial a Russian interpreter hired by the defense even established that the DEA translator had very limited knowledge of the Russian language.
Interestingly, the memoranda states that the presumption to record custodial interviews applies to all federal crimes. This means that law enforcement agents will not be able to skip recordings for cases that do not trigger strict minimum mandatory sentencing requirements such as federal drug cases. But the memorandum does nothing to prevent law enforcement officers and prosecutors from obtaining false confessions with lies and false information.
Prosecutors must remember that their fist obligation is to seek justice rather than convictions. The Department of Justice should be commended for establishing guidelines for government agents and prosecutors that’s based on a presumption that justice benefits when statements are recorded. Local and state governments, prosecutors and police departments should immediately begin recording all custodial conversations and Florida judges should force the issue by not allowing any statements into evidence which were not recorded.
What should you do if you find that there’s a pending arrest warrant for you from the State of Florida? First, it’s important to find out the crime, the date of the crime and significant facts about the crime as attested in the arrest warrant. Second, it’s necessary to establish whether the crime did in fact take place. Finally it’s imperative to determine if the State of Florida is capable of pursuing the charge.
To find out why the arrest warrant was issued you’ll need to get hold of the original charging document. If the case was filed over ten years ago, then the Pinellas County Clerks office will have the original charging document known as the information as well as the actual arrest warrant on microfilm. It may be that you were given a summons to appear many years ago while on vacation in Florida and never got around to taking care of the matter. Or it may be that a grocery store claims that twenty years ago you wrote a worthless check for thirty dollars worth of food, but that in the intervening years you’ve moved to another state.
Once specific information within the arrest warrant is found, then the accused can formulate whatever defenses may be available to the accusation. Was the defendant even in Florida when the crime occurred? Or in a worthless check case, was the check in fact actually written by the accused? If the check was forged then evidence would need to be gathered in defense.
In many older cases witnesses may no longer be available or evidence may have grown stale by the time the arrest warrant is actually served. If the State of Florida is unable to meet its burden of proving the crime beyond a reasonable doubt then this weakness should be exploited by the defense to have the case reduced or dismissed.
If you find that there is an active arrest warrant in your name remember that there are ways to turn yourself in on the arrest warrant without having to spend more than a few hours in jail. To avoid spending time in prison it’s imperative to find a lawyer who is well versed in criminal law to help you navigate toward the best possible resolution of the search warrant.
In Florida nonviolent crimes such as grand theft and scheme to defraud often result in lengthy prison sentences especially when the amount allegedly taken is significant. Yet inflation has diminished the actual damage amount values in real terms from statutes that were created decades ago.
For a grand theft third degree felony it only takes a theft amount of over $300, but if the amount is over $20,000 then a second degree grand theft charge can be triggered and should the amount be over $100,000, then a first degree felony will be charged. Any scheme to defraud charge begins as a second degree and can escalate further based on overall amount of the fraud, the number of victims or the complexity of the fraud. The problem with any second degree felony is that it automatically will result in a guideline range that calls for time in jail or prison. And this is true despite the fact that these cases are nonviolent acts for which prison time brings no benefit to the victim nor to society.
Rather than blindly accepting the statutory loss amounts, you’d think smart sentencing judges would gladly accept evidence of the loss amount in real terms after inflation in their sentencing calculations; thus lowering the sentencing guidelines as well as the charged felony degree in many theft cases. But the prosecutor, dressed in black today, would object on the grounds that if there was a deflationary period, the defense would never accept anything less than the sum denominated in the statute. And the judge would agree because in Florida the guidelines and scoresheets determine the sentencing outcome.
Until Florida guidelines and scoresheets are altered by the legislature to accurately reflect inflationary loss amounts, it will be necessary to remind the sentencing judge of the passage of time since the statutes became law while establishing why a sentence under the guideline range is appropriate under the circumstances of the case. For example, the law in Florida specifically allows a judge to go under the sentencing guidelines if doing so will allow the victim to receive restitution. So that in many theft cases that may trigger a sentence of prison, it becomes a race against the clock to make a good showing to the sentencing judge that restitution can be paid.
The principle now being accepted about American justice is that the needless imprisonment of millions of Americans over the past thirty years was a waste of time, resources and immeasurably lost lives. Yet the radical law makers, judges and prosecutors who did this will never be punished. Instead as it becomes common thought to now decry the abuses of harsh sentencing, they’ll simply embrace the changes and receive praise for their wisdom.
It was a radical movement that resulted in America – land of the free – having the highest number of citizens imprisoned that any other country. The radicals persuaded otherwise reasonable people that many Americans were not fit to live among us even if those Americans were never accused of any violent crime.
They were not fit to live among us because they used drugs, committed theft or damaged property. Federal and state governments declared war on drugs by sending millions of Americans needlessly to long minimum mandatory prison sentences where many otherwise good people still languish. Property rights were elevated above the rights of defendants.
And a failure of morality combined with a warped sense of justice led judges and prosecutors to somehow believe that what they were doing was best for all of us even those they incarcerated. The more punishment given to those unfortunate few would free the rest of us from having to worry about our possessions being devalued.
Still every criminal defense lawyer knows that the most effective arguments aren’t made at sentencing at all; they’re framed and reframed a thousand times until the culture develops an acceptance of basic principles. The basic principles of any society ebb and flows in tidal fashion, today in America finally bending toward less punishment for nonviolent offenders. Even as our trusted law makers, judges and prosecutors subverted the law to use it as a bludgeon destroying those who lived in ways they denounced as immoral. But what about the lost lives, the lost years, the lost loves of every person recklessly sent to prison?
Shouldn’t those who instigated this needles be treated to public shame? Shouldn’t we not only free the victims of this injustice, but find some way to punish those who failed to observe basic American values?
True American values as embraced within an ideal American justice system must always rise toward granting fair trials, reasonable sentencing and impartial results. It’s time to demand that our American gulag stop punishing nonviolent crimes with long terms of prison.
As Congress and the Federal Sentencing Commission have not yet officially acted on the Attorney General’s recent request to reduce nonviolent federal drug criminal sentences by two levels, its important to know which Federal Judges are granting a variance with the expectation that the Federal Sentencing Guidelines will be changed soon.
The following is a list which should prove useful to criminal defense lawyers practicing in the Middle District of Florida. Each case can be assessed for further information in the Federal ECM filing system to determine what each of the Federal sentencing judges in each case may have required from defense counsel to make favorable ruling for a two level sentencing reduction. Cases where courts have granted two-level variance based on pending change in drug guidelines USSG § 2D1.1:
1. Federal Cases in Tampa
United States v. Bishop, Case No. 8:13-CR-387-T-30AEP (M.D. Fla. 2014)(Moody, J.)
United States v. Castaneda, Case No. 8:13-CR-403-T-33AEP (M.D. Fla. 2014)(Covington, J.)
United States v. Denson, Case No. 8:13-CR-180-T-33MAP (M.D. Fla. 2014)(Covington, J.)
United States v. Hayes, Case No. 8:11-cr-00345-EAK-EAJ-6 (M.D. Fla. 2014)(Kovachevich, J.)
United States v. Magana, Case No. 8:13-CR-458-T-30MAP (M.D. Fla. 2014)(Moody, J.)
United States v. Murphy, Case No. 8:11-CR-463-T-17TGW (M.D. Fla. 2014)(Kovachevich, J.)
United States v. Persuad, Case No. 8:13-CR-434-T-30TBM (M.D. Fla. 2014)(Moody, J.)
United States v. Rodriquez, Case No. 8:13-cr-00229-JSM-MAP (M.D. Fla. 2014)(Moody, J.)
United States v. Secrest, Case No. 8:13-CR-268-7-17MAP (M.D. Fla. 2014)(Kovachevich, J.)
United States v. Zamrripa, Case No. 8:13-Cr-502 (M. D. Fla. 2014)(Lazarra, J.)
2. Federal Cases in Orlando
United States v. Chehab, Case No. 6:13-cr-00179-CEH (M.D. Fla 2014)(Honeywell, J.)
United States v. Humberto Reyes, Case No. 6:13-cr-210-CEH-TBS (M.D. Fla. 2014)(Honeywell. J.).
3. A federal case from Jacksonville
United States v. Gibbons, Case No. 3:12-cr-201(S1)-J-34JBT & 3:13-cr-37-J-34MCR (M.D. Fla. 2014)(Howard, J.).
This list is clearly not comprehensive in that it does not include a case I wrote about in this blog a few weeks ago in which a federal judge in Tampa granted a two level variance for my client in a federal drug case involving steroids.
In using this information lawyers can ascertain whether their Judge will require a sentencing memorandum that specifically delineates the request or whether an oral motion at the time of sentencing will be sufficient. At least one federal defense lawyer sent an email to me saying that he planned to ask for a 180 day continuance for his client’s federal drug sentencing, in hopes that his client would benefit once implementation of the rule is finalized by Congress. I don’t believe this strategy is likely to meet with success nor is it the best way to proceed because the federal judges are not going to continue all of their pending drug cases for six months. Yet arguable at least it lays out a record for possible appeal later if the sentencing commission fails to make these changes retroactive.
Federal Judges should be granting these motions for two-level variance reductions because otherwise there will be an unfair disparity of sentencing for those who are sentenced now. Because Assistant U.S. Attorney’s are no longer objecting to the motions, it would seem that an appeal is as unlikely from the government as from those for whom the variance is given. For the most part it would seem that judges who are predisposed to grant this motion will address it on their own terms so that there is consistent sentencing at least within their own courtrooms, but shouldn’t all of the judges also be concerned about what the other federal judges are doing and the inconsistencies of sentencing within each jurisdiction?
Even when the variance is granted it’s important for lawyers not to allow their clients to have false hope. They need to make it clear to their clients to how small a two-level reduction in a federal sentence can be in terms of actual months of time served in prison. Step by step federal judges need to given much more discretion to do what is right for federal defendants by crafting sentences that may punish and deter, yet also give hope by changing lives for the better. Clearly nonviolent defendants should receive fairer sentences with much less jail, because the Attorney General of the United States is right two million Americans in prison is far too many, this two-level variance is the first step in actual prison reduction.
In an effort to “restore a degree of justice, fairness and proportionality” in federal sentencing the Department of Justice is finally moving to directly reduce unfair sentences for nonviolent defendants by broadening clemency criteria.
The goal is to correct widespread sentence disparities which have escalated with the implementation of harsh Federal Sentencing Guidelines that gave federal judges little discretion in federal sentencing. In fact for a number of years it has been federal prosecutors rather than federal judges who made the most important sentencing decisions. And with the Justice Department decision to broaden clemency criteria it’s ever more clear that punishment in America is dominated not by judges but by prosecutors. Criminal defense lawyers could do little but force cases to trial or search for the best sentencing alternatives by persuading prosecutors that the case was weak.
Some federal judges even noted in opinions apparently not co-written by prosecutors that they had become little more than adding machines totally calculations for the sentencing guidelines without any real human input. In many cases wary federal judges have been unwilling to give lower sentences especially in jurisdictions such as the Middle District of Florida, where there existed the threat of successful appeal of the sentence by prosecutors. Even good judges found themselves hemmed in between harsh sentencing guidelines, minimum mandatory sentences and overzealous prosecutors.
Clearly this is an important step toward fairer sentencing by the justice department. And at least this gives every sitting president the ability to right the wrongs of sentences that are unfair by granting clemency to clear up past unfair sentencing for those in prison awaiting American justice. One example of unfair sentence due to sentencing disparity given in the attorney general’s statement on clemency is crack cocaine. At one point those caught with crack cocaine were routinely sentenced to 100 times as much prison time as those prosecuted and punished for other forms of cocaine, which the Supreme Court reduced it to 18 to one. Yet even at 18 to one, many of those people convicted of this nonviolent drug possession charge still remain in prison. But what we really need is fair sentencing.
And the only way to gain fair sentencing is to change the entire criminal justice system. We need judges who are brave, articulate and compassionate, who understand what serving time in jail really means and who are willing to do what is right no matter what the public consequences. We need new laws that give the power of sentencing to judges not prosecutors. We need overzealous prosecutors to understand that their first duty is to implement justice. And we need federal criminal defense lawyers who never give up, who never stop fighting for their clients to find the best possible sentencing outcomes.
Since a battery under Florida law is an intentional touching or striking of another person, a battery committed against a law enforcement officer should always require that the defendant intended to touch or strike an officer. Yet officers often make arrests for Battery on a Law Enforcement Officer (BOLEO) where there’s no evidence of any intention to commit battery on the officer.
|W.C. Fields about to be Battered
While working years ago as a prosecutor and now as a defense lawyer in Tampa Bay, Florida I’ve seen dozens of cases dismissed or reduced when evidence clearly established that an officer was not intentionally touched.
The following are four ways in which law enforcement officers often mistakenly charge an unintended or accidental touching as a BOLEO:
1. Law enforcement officers may overreact when they feel that a situation is getting out of control and make a BOLEO arrest to quell the situation. Officer safety is a legitimate issue but an arrest for BOLEO should only be made if the facts and circumstances of the case support an intentional touching or striking of an officer.
2. Other cases result from what should be charged as a mere misdemeanor resisting arrest without violence where a defendant is not immediately obeying an officer’s commands to allow an arrest or provide specific information. In these situations the case should be reduced from a felony to reflect the actual facts of the case.
3. Sometimes officers become frustrated during the course of an investigation if an officer is injured even if the defendant had no intention of doing anything to the officer. In one case I had years ago the officer was angry that his glasses broke while securing my client during an arrest and was more than happy to use a felony charge as a means of paying for his new frames thru restitution. The other officers testified that there was no unlawful touching or striking of the officer’s face so the BOLEO charge was dismissed.
4. Officer or prosecutors may make a tactical decision to add BOLEO charges that would normally not be filed where it can be used as effective leverage to convict the defendant of other charged misconduct. By driving the guidelines higher with a new charge the prosecutors up the ante for a defendant who might want to fight the other charges in trial thus increasing the chances of obtaining a conviction.
If you’ve been falsely arrested for Battery on a law enforcement officer, it’s important to have a criminal defense lawyer look for the underlying reasons why a BOLEO charge has been filed in each case and then to support his conclusions with evidence such as video, audio, photographs, medical records or witness testimony. By establishing a likely motive for the police to have mistakenly charged the felony BOLEO it becomes much more likely to find ways to dismiss the charge or reduce the felony to a more manageable misdemeanor.
Even after sentencing in federal criminal cases there is still hope for federal prisoners to be re-sentenced within a year of the original sentencing date to a lower period of prison time based on Rule 35 substantial assistance for the best possible sentencing outcomes.
In a typical federal criminal case in which a defendant either pleads guilty or is found guilty after trial, the defendant will be given an opportunity to give a proffer before sentencing. A proffer is a statement of knowledge of criminal acts that not only constitute the charged misconduct in the indictment, but often includes knowledge of other criminal conduct.
In many Federal jurisdictions including the Middle District in Tampa the Department of Justice Assistant United States Attorneys will make a motion for a substantial assistance departure from sentencing guidelines only if the quality of the information is likely to result in further arrests or indictments.
Under federal law only the Government may file a motion for substantial assistance. If the proffer results in a substantial assistance motion before sentencing, then part 5k of the Federal Sentencing Guidelines governs; whereas if the proffer results in a substantial assistance after sentencing, then it is Rule 35 of the Federal Guidelines that governs. Even when the Government deems that there is an insufficient proffer of alleged criminal conduct to provide a 5k motion before sentencing, there is still a possibility for new information to be considered for substantial assistance under Rule 35.
What should a federal defendant who has already been sentenced do to persuade the Government to provide him with a Rule 35 substantial assistance? Here is a five step process to consider:
1. The prosecutor most likely to file the Rule 35 is the very one who prosecuted the federal prisoner. The prosecutor will be most interested in expanding the federal indictments that led to the underlying criminal case against the federal defendant. Therefore, the most important information that a defendant may possess is any new information about the initial criminal conduct.
2. The prosecutor is busy prosecuting other cases. In fact his or her knowledge about the facts and circumstances of the case is often more limited than that of the government agent involved. Therefore, the most important person to contact with any new information is the government agent.
3. The Government agent must be convinced that the information has the following attributes:
- The information is new. Any information that was given in the original proffer before sentencing is no longer new nor original. The government agent can not be expected to spin wheels over old facts.
- The information is timely. If the information is no longer of use, then it will not help the Government.
- The information is credible, trustworthy and reliable. Any inconsistencies within the framework of alleged facts makes all of the facts given more difficult to believe.
4. If the information for a proposed new proffer is about other criminal conduct than the charged offense, then it may be necessary to contact other federal agents or state law enforcement officers. But remember that since the motion must be filed in federal court by a federal prosecutor, it’s important to include the original federal agent or whichever agent is handling his files if, for example, he has retired or rather unexpectedly become a zen monk in Japan.
5. In this process it’s important to find a champion, but the champion is not going to be your defense lawyer. Your champion will be the government agent who makes the time and effort to listen to a new proffer, who believes the proffer is reliable and credible and who then persuades the prosecutor to file the Rule 35 motion.
Once a substantial assistance motion is filed a defense lawyer may be of assistance in making effective arguments to the federal judge for giving as many levels as possible in a downward departure from the original sentence. The goal will be to find the most effective ways to provide the federal sentencing judge with better sentencing options by reducing the federal sentencing guideline range.