A Middle District of Florida District Judge in Tampa threw out a firearm conviction in a drug trafficking and conspiracy case against reggae star Buju Banton because one of his jurors apparently used information gleaned from the internet during jury deliberations. Unhappily for everyone involved the source of the juror’s information was not this blog.
|Tampa Bay federal attorneys are often even more frightened of the federal firearm and weapons five year minimum mandatory than we are of wayward jurors in that the five year minimum mandatory sentence by law must be tacked on to the drug sentence to run consecutively.
The judge has no discretion to run the sentences concurrently (at the same time, so a defendant serves two sentences at once) as is often possible in other crimes.
Press reports note that the Judge is weighing what to do with the juror, but has made it clear that the juror could face a contempt of court charge based on an investigation of the juror’s seized computer and conflicting statements from the juror. Googling jurors have been a recurring problem in the Tampa Bay criminal justice system. One of the unfortunate aspects of any criminal case is how complicated jury instructions can be. And the juror may have simply been trying to understand a firearm issue that could even trip up seasoned lawyers and judges.
In this case there was the additional complication of what is known as the Pinkerton Rule which establishes that if a co-defendant has a firearm in a federal offense others my be charged with the firearm and punished with the additional minimum mandatory five year sentence even if there was no proof the others had knowledge of the gun.
This rule allows the federal prosecutors to leverage the firearm minimum mandatory to force a plea of guilty. When Bufu Banton elected to go to the jury on the drug charges, the Government made his sentencing exposure much harsher by adding the firearm count. All of this was given to Banton’s jury in jury instructions composed of arcane legal language that typical Americans could hardly be expected to appreciate or understand.
Yet every Clearwater criminal defense lawyer would agree that American justice demands that a trial must be fair and that means that jurors must not be able to research facts and law during the trial.
Has that gun you just bought so you stand your ground with pride in Tampa Bay ever been reported as stolen? And even better, was the gun used in some sensational Florida crime? If intrepid Clearwater Criminal Defense Lawyers want to know, so should you. Here’s how to find out if any gun with a serial number is stolen.
| Hunters at Rest, 1871. Are these Florida Rifles stolen?
|Go to the Florida Crime Information Center, which unfortunately is not the name of my office, but is part of the Florida Department of Law Enforcement. Simply put the serial number of the gun into the search engine, then presto like using a magic eight ball you’ll find out instantly if your weapon or firearm has been reported as stolen. There are also sections to check on other stolen property such as boats, vehicles, vehicle parts and license plates. Why not check everything you own?
What should you do if you are in possession of a stolen gun? If your favorite Clearwater Criminal Defense Attorney has told you once he’s told you a thousand times, don’t bring that damn firearm into my office, especially if you’ve murdered or shot someone with it. Don’t shoot my web page, it’s not the web page’s fault. Put the gun on the table. Walk away. Walk back to the gun. Unload the gun. Put the gun back on the table.
Stand your ground is the law in Florida. Recently in Tampa a man stabbed another man in the head with an ice pick after a traffic dispute leaving the stabbed man in critical condition. His defense was that he was standing his ground.
In Clearwater the police determined there would be no arrest of a man who shot his neighbor after a shouting match over putting out garbage.
In Hillsborough a jogger shot and killed
an unarmed man eight times, yet the jogger was not prosecuted after establishing that he’d been struck in the face first and believed the other man to be armed. But eight shots, you’d think he might have stopped at seven…
The Florida law gives people the right to use deadly force against intruders entering their homes or vehicles, no longer needing to prove fear for their safety, only that the person who is stabbed, shot with a firearm or even killed intruded unlawfully and forcefully. Thus making a defense to charges of aggravated battery
Previous Florida law and common law required that a person attacked in a public place must retreat if possible. Now someone attacked in public, “has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force.” The law also forbids the arrest, detention or prosecution of the people covered by the law, and it prohibits civil suits against them.
The central innovation in the Florida law is in expanding the right to shoot intruders who pose no threat to the occupant’s safety. According to the International Herald Tribune, one professor of law noted, “In effect,” Professor Sebok said, “the law allows citizens to kill other citizens in defense of property.” At least the Florida Supreme Court
has ruled in its standard jury instructions
that the Defendant must actually believe that the threat and danger is real. Statutes & Constitution :View Statutes : Online Sunshine
776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.—
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
(2) The presumption set forth in subsection (1) does not apply if:
(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or
(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or
(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.
(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
(4) A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.
Members of the Florida Supreme Court rest after a hard day’s work in the Fields of Justice.
The United States Sentencing Commission just finished an extensive study on the effects of Mandatory Minimum sentences in federal sentencing which it has just sent to the U.S. Congress.
You’ll find some excellent recommendations that Congress should immediately adopt such as reducing Mandatory Minimum sentences, giving Judges more discretion in sentencing, reducing Prosecutorial power, enlarging the safety valve for more than just first time offenders, making the guidelines fairer and reducing demographic and racial disparity in sentencing – all of which would provide your Federal Criminal Trial Attorney with some reason to believe that sentencing under the Federal Guidelines really could become fair and impartial.
Below is a brief summary from Amy Baron Evans (many thanks) of Chapter 12 (the Recommendations). You can access the entire study from the link below.
Drugs · “Commission analysis indicates that the quantity of drugs involved in an offense is not as closely related to the offender’s function in the offense as perhaps Congress expected.” “[O]ffenders who performed lower-level functions such as Couriers and Mules also were convicted of drug offenses carrying a mandatory minimum penalty in a significant proportion of their cases (49.6% and 43.1%, respectively). For every function, the quantity of drugs involved in the offense on average resulted in a median base offense level that included or exceeded the five-year mandatory minimum penalty.” But, USSC suggests, safety valve and role adjustments correct for the problem on average.
· Criminal history in drug cases – the “cumulative impacts”
of 851, the CH score, and the unavailability of safety valve relief “can result in disproportionate and excessively severe sentences in certain cases.”
FAMM – The Fair Sentencing Act of 2010
Stacking 924(c)s “results in excessively severe and unjust sentences in
some cases.” Average sent5ence was 351 months! “There are some circumstances where such a long sentence may be appropriate (e.g., in the eight cases in fiscal year 2010 in which the offender’s primary guideline was §2A1.1, which covers first degree murder), but there are other circumstances in which the offender received such a long sentence even though the offense did not involve any physical harm or threat of physical harm to a person.”
Mandatory Minimum Sentencing | Drug War Facts
ACCA: Applied inconsistently in part because whether an offense is a
“violent felony” or “serious drug offense” depends on the stat max in the convicting state (one year or 10 years, respectively). “As a result, the Armed Career Criminal Act’s mandatory minimum penalty can apply to offenders who served no or minimal terms of imprisonment for their predicate offenses, further increasing the potential for inconsistent application insofar as the penalty may be viewed as excessively severe in those cases.” Recommendations:
· Reduce the penalties for 924(c)s, especially stacked 924 (c)s
· Make 924(c) a true “recidivist” statute by limiting to prior convictions
· Give the court limited discretion to impose consecutive sentences for multiple 924(c)s as in 1028A
USSC will study further and make recommendations later, but “preliminary
review of the available sentencing data suggests that the mandatory minimum penalties for certain child pornography offenses and the resulting guidelines sentencing ranges may be excessively severe and as a result are being applied inconsistently.” The data is non-gov sponsored variances, gov-sponsored variances, and failure to charge the mand min in 53% of cases where it’s available.
Aggravated Identity Theft
USSC likes this better than other MMs because (1) the two-year consecutive
penalty is relatively short, (2) the court has discretion to impose sentences for multiple violations concurrently, (3) there is no stacking provision, and (4) it does not depend on CH or weapons, which creates demographic disparity under other MMs. There is inter-district disparity in the use of 1028A but this may be because it’s new, and in any event, the punishment is relatively short.
Safety valve in general
Congress should consider whether to enact safety valve for low-level,
non-violent offenders convicted of other offenses.
This recent painting depicts a beaming French Poodle who sits centre stage as the wise Judge at Court. That’s an adoring bailiff at the judge’s left paw staring at the Judge with appropriate admiration and respect. I’m the bright black Labrador to the Judge’s right with an Important Brief that I’ve dipped in beef broth in hopes of the Judge devouring my every word.
|Trial by Jury or Laying Down the Law by Sir Edwin Landseer, 1840
|The painting was inspired by a chance comment by an infamous Tampa Bay Judge, over dinner with the painter Sir Edwin Landseer, that the French poodle belonging to amateur artist and renowned socialite, the Count d’Orsay of Clearwater Beach, Florida “would make a capital Lord Chancellor (Chief Judge in England).”