FLORIDA JUDGE RECONSIDERS HIS ORDER TO SEIZE JUROR’S COMPUTER USED DURING FEDERAL TRIAL

Although one important goal of the criminal justice system is finality, your favorite Clearwater Criminal Defense Lawyer would argue that the most important goal of a criminal trial is that it be fair. 
A federal judge in the Middle District of Florida in Tampa issued an ex parte order last week directing the Marshall’s office to seize the computer of a juror. 

Renoir's famous painting of a couple in the theater box is not unlike two jurors searching for evidence in Tampa Bay, Florida where a federal judge wants to make sure a drug defendant's guilty verdict was fair despite a juror who made google searches during the trial.
Renoir, Jurors Seeking Evidence

The juror apparently told news sources that during a criminal trial for Trafficking in Cocaine of reggae star Buju Banton, she inappropriately looked up information on the internet. The verdict against the rapper was guilty and the never resting Defense is seeking a new trial, with one hopes, a jury without internet connectivity.
Clearly if any internet information was used by members of the jury before or during jury deliberations, then the Defendant may not have received a fair trial. 
One wonders if spreading cellphone technology with ready access to the internet will make fair criminal trials impossible in the future. 

The federal judge recanted his decision on seizing the former juror’s computer based on possible juror misconduct after argument from counsel according to press reports:

The Judge changed his mind after a prosecutor questioned whether the order, which was made during a telephone conference between the judge and lawyers in the case, had adequately addressed privacy and due-process issues.

Defense counsel for Banton contends that the jury was swayed by the juror and information she obtained through Web surfing to convict Banton instead of acquitting him.
…In an exclusive interview the Juror allegedly stated that she researched some issues in the case during trial so that she would be ready to deal with them during deliberations. She said: “I would get in the car, just write my notes down so I could remember, and I would come home and do the research,” the newspaper reported in October.

It’s ironic that federal prosecutors addressed privacy and due process issues to the Judge to solidify their conviction, as they’re more apt to trample these bastions of liberty. Yet more ironic perhaps is that the Defense seeks the computer files thru any means necessary. 
Ultimately the Court made a better decision in requiring that the Juror appear before him in a week and to come armed with the computer so both sides can have an opportunity to have experts examine the google searches made during the trial.
Unhappily these confounded Judges are still somewhat unwilling to have folks reading this blog during jury deliberations. From my experience in Federal Trials your Clearwater Criminal Attorney has no doubt that the entire jury panel was repeatedly cautioned by the Judge to make their decision based only on the information provided by the lawyers or the Court during the trial as this insures the certainty that the Defendant receives a fair trial based on the evidence and the applicable federal law.

 

HOW COULD A FAMOUS ARCHITECT CAUGHT WITH 13 POUNDS OF COCAINE RECEIVE ONLY SIX MONTHS JAIL?

Your favorite Clearwater Criminal Defense Attorney applauds Federal Judges who use their discretion to construct fair sentences under the Federal Sentencing Guidelines range. 

Architect Drug Mule
Architect Eugenio Velazquez

A California Federal Judge recently sentenced a famous Tijuana architect who designed some of the city’s most beautiful landmarks including it’s modern Cathedral as well as Tijuana’s iconic, possibly ironic, Police station. The hapless architect was caught entering the United States with nearly 13 pounds of cocaine hidden in his minivan. 

That weight of cocaine in the Middle District of Tampa, Florida easily nets a Defendant at least a ten year minimum mandatory sentence with the possibility of additional time under the Federal Sentencing Guidelines, whichever results with the higher number. A Defendant with no criminal history can benefit from the federal safety valve provision permitting the Judge to pierce the minimum mandatory, but it gives only a two level drop from the guideline score range, which easily is over ten years on thirteen pounds of cocaine.

So why and how did the California Federal District Judge go under the Federal Sentencing Range? 

The Defendant claimed that drug traffickers threatened his life if he refused their demands to take the drugs over the border. Plus it helped that the Defendant had led up a ‘good life’ before his arrest. After all, Judges one hopes, are human.

Press Reports note that the Judge took into account the fact that the  Defendant verified the threats against him:

The judge said the ability of Velazquez to verify threats against him were crucial to the reduced sentence. He was also acknowledged for leading “a good life” until his arrest.
The architect, fearful of drug-fueled violence in Tijuana, accepted his client’s offer to provide personal security while Velazquez crossed the border between home and work.Then the client — unnamed in the filing — demanded pay of $40,000 or drive drugs across the border….
Velazquez’s attorney told reporters after the sentencing that a friend verified the claims for U.S. investigators. Both men said they were threatened at gunpoint.

As Mexican cartels move cocaine north from South America, they rely on “mules” to hide small packages of drugs in vehicle compartments and on their bodies to get past U.S. inspectors on the Mexico border. Many couriers are young, poor or adrift, desperate for a few hundred dollars.

To persuade the sentencing Judge to give a fair sentence, Clearwater Criminal Lawyers must first establish that the Defendant has lived a ‘good life’ then present facts in mitigation at sentencing with verifiable evidence. 

TRAFFICKING IN COCAINE CASES REDUCED AS FLORIDA FAILS TO PROVE THE ACTUAL WEIGHT OF DRUGS IN TRIALS IN TAMPA BAY COURTS

 The Florida 4th District Court of Appeal just reversed a trafficking in cocaine conviction in an amount of 200 grams or more, but less than 400 grams, because the State of Florida failed to prove the actual weight of the cocaine at trial, see Jackson v. State, 76 So. 3d 1130 (Fla. 4th DCA 2012). The Court also noted that a 2nd DCA case which would make this law applicable to Pinellas and Tampa Bay, which is good news for your favorite Clearwater Criminal Defense Attorney.
The Defendant, Jerrold Jackson, was sentenced to fifteen years with a seven-year mandatory minimum on the cocaine charge and to time served on a misdemeanor possession of marijuana. Because the State failed to establish that the weight of the cocaine was 200 grams or more, the appeals court reverse with instructions that this conviction be reduced to the lesser offense of trafficking in cocaine in an amount of twenty-eight grams or more, but less than 200 grams, and that his sentence be modified accordingly.

A police officer testified at the trial that execute a search warrant at the Defendant’s home and incident to the search, found powder cocaine which a drug dog alerted to at several locations throughout the residence.
Here is where the state’s case imploded. When the crime lab technician testified that she tested two items recovered from Defendant’s residence and that: “One consisted of eight baggies containing a powdery substance. The chemist tested a random sample of the powder and concluded that the powder was cocaine. The eight baggies had a combined weight of 182.7 grams. The chemist also tested two baggies containing cocaine rocks. Bag one weighed 22.9 grams and bag two weighed 6.6 grams. On cross-examination, the chemist testified that she tested only one of the eight baggies containing the powdery substance. She indicated that she could not confirm that the other seven bags contained cocaine.”

The Defense moved for a judgment of acquittal, as would have a Clearwater Criminal Defense Lawyer, because the State failed to meet its burden as to possession of cocaine in an amount exceeding 200 grams because no evidence was presented that the other seven baggies contained cocaine, but he trial court denied the motion.
 In reversing the decision of the trial Court and making a finding that the weight of cocaine had not been established by the State of Florida, the Florida Appeals Court also noted: 
A visual examination of untested packets of this weight is insufficient to convict because the white powder contained therein may be milk sugar or any one of a vast variety of other white powdery chemical compounds not containing cocaine. Moreover, the fact that one or two packets containing cocaine are found among other packets containing similar-looking white powder is no assurance that the latter untested packets also contain cocaine in view of (1) the vast number of other chemical compounds which have a similar white powdery appearance, and (2) the fact that the material in the untested packets was not commingled with the material in the tested packets.

In this case, the State failed to meet its burden under Ross, where only one of eight baggies was tested. See also Safford v. State, 708 So.2d 676, 677 (Fla. 2d DCA 1998) (in reliance on Ross, reversing conviction for trafficking in cocaine of an amount exceeding twenty-eight grams, where State failed to test forty separately-packaged foils of cocaine powder). 
FDLE BETTER DO A LAB TEST ON ALL THE COCAINE IN THIS HOURGLASS
FDLE should do a lab test on all the cocaine in the hourglass
Temperance Bearing an Hourglass