Avoiding a Harsh Federal Minimum Mandatory Sentence in The Middle District of Florida in Tampa

Sentencing in Federal Court for drug trafficking and other federal crimes often require federal judges to give minimum mandatory sentences. This is because federal judges do not have as much discretion as federal prosecutors.

Prosecutor Yes: No Judge & No Defense Lawyer

Prosecutor Yes: No Judge & No Defense Lawyer

The very process of how federal criminal cases proceed allows the federal prosecutor often shapes the final sentencing results long before the federal judge is even assigned to the case. In grand jury proceedings prosecutors are permitted but not judges nor defense attorneys. Prosecutors mold the grand jury deliberations by defining for the grand jury the nature of criminal violations charged in the indictment. Prosecutors decide very early if the grand jury should trigger the minimum mandatory sentencing provisions of the Federal Sentencing Guidelines. That early decision will effect how the case will later be decided.

Once the federal indictment is unsealed and an arrest of the defendant is made, then the defendant is confronted with a stark choice. Should the defendant co-operate and plead guilty to the charge or should the charge be tested thru a trial by jury. Should the defendant choose to fight the charges he will likely be forced to wait in jail for his trial because by definition any drug or weapons charge that triggers a minimum mandatory sentence forces a federal magistrate to make a finding under the law that the defendant is not only a threat to the community but a flight risk.

If the defendant decides to plead guilty again a federal prosecutor with help from a federal agency such as the FBI or the DEA, will have the ultimate decision as to whether the case justifies going under the minimum mandatory sentence.

The defendant is given an opportunity to give a proffer. In the proffer he must answer truthfully in assisting the prosecutor in making further indictments and arrests. The prosecutor has sole discretion as to whether the defendant was truthful, honest and useful. Ultimately the prosecutor must file a motion for substantial assistance known as a 5k motion (or known as a Rule 35 motion if made after the initial sentencing). The federal judge can not entertain a motion for substantial assistance unless the prosecutor files the appropriate motion because under federal law the judge only has jurisdiction when and if the federal prosecutors file.

Clearly, federal judges should be given much more discretion to give fair sentences under the strict minimum mandatory requirements and under the Federal Sentencing Guidelines. But until that happens your criminal defense lawyer must understand how to adjust, attack and benefit from the framework of the guidelines to achieve the best results. It’s important to find an attorney who understands the grand jury process, how prosecutorial decisions are made and the criteria for sentencing among federal district court judges in the Middle District of Florida to find the best ways to avoid the guideline ranges and provide the judge with better sentencing options.

Don’t let the threat of a federal indictment or the possibility of a long federal prison sentence ruin your life. Attorney Robert Hambrick has handled many successful federal criminal cases in the Middle District of Florida. Robert can help you make the most important decisions of your life in dealing with the federal criminal justice system to achieve a result that will let you move forward with your life.

FEDERAL CRIMINAL CASES IN THE MIDDLE DISTRICT OF FLORIDA WITH TWO LEVEL VARIANCE GRANTED

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 ยง 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.

THOUSANDS OF NONVIOLENT FEDERAL PRISONERS MAY GET EARLY RELEASE UNDER NEW CLEMENCY CRITERIA

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.

HOW FEDERAL PRISONERS MAY GAIN SUBSTANTIAL ASSISTANCE AFTER CONVICTION & SENTENCING

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.

JUSTICE DEPARTMENT LOWERS SENTENCES IN FEDERAL DRUG CASES IN THE MIDDLE DISTRICT OF FLORIDA

To my surprise in a recent drug sentencing in the Middle District of Florida the Tampa federal Judge reduced the offense level by two based on Attorney General Holder’s recent comments about the need to reduce the amount of prison time in federal sentencing. Though reluctant, there was no objection on the record from the Government. 

Under the Justice Department even law enforcement in Tampa Bay could serve less time for unlawful acts.
Avoiding Jail is Justice’s Goal


For the most part the federal judges and prosecutors in the Middle District of Florida have shown very little inclination to give downward levels at sentencing on what the Federal Sentencing Commission or Congress may do in the future. Yet 

My client was charged with possessing a significant amount of steroids and marijuana found incident to a search warrant. After reviewing discovery and discussing possible defenses, he acknowledged his guilt and accepted responsibility for his actions upon signing a plea agreement. The plea agreement noted that the Government would have no objection to a sentence being given in the low end of the guideline range. 

Yet because of the large quantity of steroids and marijuana as well as a significant prior record the expected federal guideline range appeared to be well within in zone D with a likelihood of at least 12 to 18 months in prison. 

The following facts provided the judge better options under the federal guideline range to allow my client to receive a time served disposition at sentencing.


First, my client’s successful and timely proffer resulted in the Government filing of a 5K motion for substantial assistance. Some times the Government fails to file the motion despite what I believe is excellent cooperation. Here my client never stopped cooperating from the moment of his initial arrest. The assistant U.S. Attorney asked for a two level reduction in sentencing. The Court granted a three level reduction upon hearing testimony from the Government agent about the extraordinary cooperation of my client.

Second, based on Attorney General Holder’s speech the night before the sentencing the Court entertained a motion to reduce the sentence by two additional levels due to the likelihood of future federal Congressional action or action taken by the Federal Sentencing Commission at the behest of the Justice Department. However, the Defendant was asked on the record by the judge to agree that he would not ask for another two level reduction if Congress passed such a law though he could ask for a further reduction if Congress passed a law with more than a two level reduction.

Third, we established that on his own volition my client had enrolled in a halfway house while being free on a signature bond while awaiting trial or plea. We asked the Judge to consider the time in the halfway house as 157 days of time served in jail while awaiting sentencing.

The three level reduction for a successful 5k proffer combined with the two level reduction for the Justice Department’s future legislative goals were sufficient to bring my client from sentencing zone D to sentencing zone B. In zone B the judge has much more discretion to give a fair sentence. The judge gave credit for the time served by my client in the halfway house. Ultimately the judge sentenced by client to time served.

Although things went fine for my client in his case, the Justice Department should act quickly to push the necessary changes thru Congress with help from the Federal Sentencing Commission so that every defendant will have sentencing parity no matter where in the country their drug indictments originated. The goal must be to limit over-incarceration in nonviolent federal drug cases by giving federal judges more sentencing discretion.

FEDERAL SENTENCING COMMISSION PROVIDES USEFUL TRAINING MATERIAL FOR DEFENSE LAWYERS & CLIENTS

The United States Sentencing Commission webpage has recently been updated with fascinating information for criminal defense attorneys as well as their federal clients. The information is divided into training material intended for defense lawyers, prosecutors and judges as well as a spotlight section on changes to the law and possible future changes to sentencing. 

The federal sentencing commission determines how to apply federal criminal law but also provides helpful advice to lawyers, prosecutors and even clients in Tampa Bay, Florida.
The spotlight section highlights new information on the recommended expanded safety valve provisions, federal minimum mandatory sentencing and a useful quick guide on minimum mandatory sentencing categories, triggers and exceptions useful in keeping the law handy for practitioners. To find the information just go to the webpage above, look for “spotlight” and keep clicking till your fingers hurt.

Besides the quick spotlight information, the webpage offers an extraordinary amount of new training material for lawyers, prosecutors and judges. Yet this information can be accessed by anyone, so the webpage should be helpful in directing clients toward relevant knowledge about federal sentencing especially if in the difficult position of being a possible target of federal agents, a person of interest in to a federal grand jury or party to any federal investigation. 

To gain access to this wealth of material simply go to the webpage above, click on “Education and Training” then click on “Guidelines Education Materials” and look under “Advanced Training Materials.” Here’s a summary of what you’ll find:

 Loss Primer, March 2013, Victim Primer, March 2013, Drug Primer, March, 2013, Firearm Primer, March, 2013, Immigrations Primer, April, 2013, Sex Offense Primer, March, 2013, Sex offense primer & Failure to register cases, March, 2013, Aggravating and Mitigating Role Adjustments, March, 2013, Multiple Counts Checklist, Criminal History Primer, April, 2013, Departure and Variance, Primer, June, 2013

Also, if you have a client who has served in the military as is often the case in Tampa Bay, Florida use the new information listed on the webpage under the Military Service Departure under 5H1.11 which provides effective arguments in sentencing mitigation for a military veteran. The sentencing departure does not require that your client served in combat and provides a summary of the unique history in America criminal justice of recognizing military service at sentencing which could be useful arguments even in nonfederal Florida cases even where state law does not provide for leniency.

It’s often difficult in federal cases for clients to come to grips with the overwhelming power of the federal government, the federal justice system and the hazards of federal sentencing. The sentencing information in the webpage may prove even more useful to clients than their criminal defense attorneys when seeking the latest knowledge about harsh Federal Sentencing Guidelines. 

FEDERAL JAIL FOR BORROWERS AS CHASE BANK PAYS BILLIONS TO BUY OUT OF CRIMINAL PROSECUTION

Chase bank and its bankers should be indicted on federal charges if in fact the bank has committed a federal crime.
My favorite Banker

While the U.S. Attorney General negotiates billions of dollars in a  monetary settlement with J.P. Morgan Bank that will require the bank to acknowledge unlawful mortgage-backed security fraud, one wonders how bankers have avoided criminal responsibility and jail time.


According to press reports the focus of concern for the beleaguered  CEO of J.P. Morgan Chase Bank in his negotiations with our federal government is fear of criminal liability:

A major sticking point in the talks between J.P. Morgan and Justice has been how to resolve a criminal probe of the bank’s conduct.
Within the Justice Department, some officials believe they have built a viable criminal case to bring against J.P. Morgan for some mortgage-backed securities issued before the financial crisis, according to people familiar with the discussions. Investigators have been examining whether the bank misled investors about the nature of the underlying mortgages backing those securities, according to people familiar with the case.

If American banks and wealthy bankers who control them can buy their way out of criminal prosecutions, shouldn’t ordinary Americans be allowed to do the same? After all wasn’t it the greed of the bankers with real estate investors not to mention average Americans over their heads in housing debt that caused the financial meltdown. Yet the bankers got bonuses while the borrowers got jail. Many investors and borrowers of who failed to pay signature mortgage loans received grand jury federal mortgage fraud indictments with plenty of jail time once they were convicted. But of the bankers who profited the most not one has been indicted nor punished. 

The banks and their leaders should be criminally prosecuted if they committed crimes. What the bankers understandably fear is that under the Federal Sentencing Guidelines systemic mortgage fraud like any theft would be punished based on the dollar amount involved resulting in many years of Federal imprisonment for any banker convicted. As the dollar amount attributed to the offenses would be astronomical so too would be the jail time though defense lawyers would try to find the best ways to avoid guideline ranges

Banks and bankers should not be allowed to avoid criminal prosecution by buying off the government of the United States. If law has any meaning in America it must apply equally to every person and to every business entity no matter how powerful. If the bankers have committed federal crime, prosecute them, and if they need a federal criminal defense attorney tell them to give me a call.

HOW A VIOLENT MOB BOSS GOT HIS TWO CONSECUTIVE LIFE TERM SENTENCES COMMUTED IN FEDERAL COURT

Although it’s rare for a Federal Judge to commute any Federal sentence, yesterday a New York Federal Judge commuted two consecutive life sentences for Joseph Massino the first boss of any notorious crime family to benefit from substantial assistance.  Based on Federal Rule 5k at the initial sentencing and Rule 35 within a year of sentencing, prosecutors may recommend vast downward departures from the harsh federal sentencing guidelines when it suits their purpose.

FBI photo of Gambino funeral.

What doesn’t surprise a Tampa Bay Federal defense lawyer is that the Judge commuted the sentence only at the urging of Federal prosecutors who detailed the extensive cooperation which included information on hundreds of Bonanno family members and associates. 

It’s likely he neither implicated me nor members of my family, nor you and yours; however, it’s always a possibility.

Press reports note that the Judge was swayed by the extent of his cooperation as well as the clear future threat of harm to be endured by Mr. Massino, but is Mister how I should refer to him – as he’ll be out of jail in just sixty days – due deference tempered by abject fear tilts to the honorific Sir, rather than mere Mister, as quickly turning my head searching right then left for any suspicious, furtive movements, ducking only occasionally – I try to type as rain falls before silent darkness approaches. 

Making fun isn’t the best idea in these situations. God, I pray, don’t let that stoic guy read this. Has he, one wonders, actually reformed or will there be more bloodletting?

Perhaps the Judge and Federal prosecutors would rather not think about that. Would any of them want to live in the same neighborhood of this, um, errrrr… Gentleman, when he takes on his new identity in Tampa Bay, Florida, with a less exciting but equally lucrative new career provided by our Government?

The truth about Federal cooperation is ugly. The more you know and the better you’re able to testify against those below you within the criminal chain of command the more time off you get. So those who are involved in the most illegal activity later gain the most benefit. In it’s own warped way our Federal criminal justice system  grants incentives for those who would enjoy a life of crime with limited risk by granting the most benefits for those who rise high in their criminal conspiracy.

Many Federal defendants plea guilty because they believe the Federal criminal justice system is rigged and a recent study supports that notion in that 96% of Americans who are indicted by Federal Grand Juries plead guilty rather than risk going to trial. Now we know that even Federal plea agreements are rigged.

The Judges have only the limited amount of discretion which prosecutors provide them by filing substantial assistance motions. The prosecutors don’t want to waste filing the motions on the bit players. So Clearwater criminal defense attorneys find that it’s the lower rung folks, those who did the least, who must face the harsh Federal Sentencing Guidelines, spending lifetimes in prison for nonviolent crimes such as drug offenses with minimum mandatory sentences from which Federal Judges have limited discretion.


ARE JUDGES HUMAN – POSSIBLY SO, BUT HOW CAN YOU BE SURE YOUR JUDGE KNOWS YOU MAY BE HUMAN TOO

Your favorite Clearwater criminal defense lawyer is often asked before sentencing if a particular Judge is human. As it’s remotely possible that some stray Judge will one day read these very words I’m tip tap typing as you glance over this page, I’ll reluctantly decline to answer that question. 

This owl would make a fine judge because he would treat everyone with equal fairness and wisely listen to the motivations, failures, successes and goals of each defendant in Tampa Bay, Florida.
Is this a fair Judge?

Instead I’ll pose a slightly better one – Does your Judge know that you’re human? And if not, why not? If you were on a job interview wouldn’t you do everything possible to persuade the interviewer about all the impressive things you’ve done in your life? You’d also talk about the even better things you plan to accomplish in your future. 

It’s true that when it comes to sentencing the most important factor is often how the Florida scoresheets and guidelines apply to a specific set of facts. Yet fair sentencing decisions must always include much more than mere guidelines calculations otherwise our Judges are nothing more than human (or not so human) calculating machines. 

The best judges want a firm explanation of more than just the basic  sentencing guideline range blended with bland facts and circumstances of a case. The best judges also delve into the motivations, pressures, family life, failures, successes and goals of a defendant. 

What if you don’t have the best judge or for that matter what if have a judge you don’t suspect is human? Any judge can be led toward making good decisions that take into account a Defendant’s entire life story. In Federal Court in the Middle District of Florida in Tampa, Federal judges have been told by the United States Supreme Court that the Federal Sentencing Guidelines are advisory not compulsory and that the Judges must examine in detail the personal characteristics of a defendant before sentencing. Clearly all judges should make an effort toward understanding a defendant before applying any sentence.

A strong, effective Clearwater criminal lawyer will push the judge toward wanting to learn more about the defendant’s entire life history, learning not only what brought the defendant to this point in his life but why the defendant deserves to have a compassionate judge, a judge eager to find the best possible sentencing solutions with as little punishment as possible for a successful outcome.

DID THE FBI ENTRAP AMERICANS BY DISTRIBUTING CHILD PORNOGRAPHY IN AN INTERNET STING?

How far should the government go to catch law breakers? Its always surprising to Clearwater criminal defense attorneys that the government would ever deem it necessary to violate the very criminal laws it seeks to enforce. Yet law enforcement officers seem as incapable of not violating laws as do the criminals they seek.


The FBI may need to place themselves on their most wanted list because the FBI commits crime to catch criminals in the Middle District of Florida in Tampa.
FBI: Most Wanted?

Recent press reports note that the FBI has begun using tactics often employed in drug cases to find those who seek to possess child pornography. After gaining control of a bulletin board that distributed child pornography the FBI continued to run the the webpage for two weeks. 
During that two week period the FBI effectively delivered thousands of child pornography images later using the information gained from the deliveries to obtain search warrants from federal judges.

Since those who participated in the ongoing activities of the bulletin board likely did so of their own accord it’s unlikely that the FBI could successfully be accused in Federal criminal court in the Middle District of Florida in Tampa of setting these people up or entrapping them. 

For an entrapment defense to be successful it’s necessary for the Defense to establish that the unlawful act would not have been something the Defendant would have done but for Government inducement. Even with Government inducement an entrapment defense fails if there’s a finding of a predisposition to commit the crime. Was the Defendant a wary innocent or an unwary criminal readily using the opportunity to commit the crime?

The Florida sentencing guidelines as well as the Federal sentencing guidelines prescribe harsh punishment for sex offenders in possession of child pornography despite there being no actual victim contact often resulting in more significant sentences than for those who have actually molested children. Clearly the harshest punishments should be aimed at those who harm children the most. Yet Judges often do not have sufficient discretion to give fair sentences in child pornography cases.

Further, the Government has begun pursuing child pornography cases even where there is no proof of outlawed images on a computer arguing to Federal Judges that the mere hash value Tag is sufficient as an indicator of a violation of the law.

Federal criminal defense lawyers agree that protecting children is a laudable goal for the FBI, but being a party to the distribution of child pornography only tarnishes the respect for the FBI and respect for the law.