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October 2013 Archives

Holder Memorandum: Criminal Defense Attorneys Have a New Tool

By far, the most concrete and useful of the three pronouncements for criminal defense attorneys made last week was United States Attorney General Eric Holder's Memorandum to all Assistant United States Attorneys regarding the "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases." That Memorandum calls for a "fundamental rethinking of the notion of mandatory minimum sentences for drug-related crimes"; and it contains some very specific directions regarding the DOJ's charging policies regarding mandatory minimum sentences for certain nonviolent, low-level drug offenders. Specifically, the Holder Memorandum states: "In cases involving the applicability of Title 21 mandatory minimum sentences based on drug type and quantity, prosecutors should decline to charge the quantity necessary to trigger a mandatory minimum sentence if the defendant meets each of the following criteria: The defendant's relevant conduct does not involve the use of violence, the credible threat of violence, the possession of a weapon, the trafficking of drugs to or with minors, or the death or serious bodily injury of any person. The defendant is not an organizer, leader, manager or supervisor of others within a criminal organization; The defendant does not have significant ties to large-scale drug trafficking organizations, gangs, or cartels; and 
The defendant does not have a significant criminal history. A significant criminal history will normally be evidenced by three or more criminal history points but may involve fewer or greater depending on the nature of any prior convictions . . . ".

Criminal Defense After Holder's Pronouncements

Criminal defense attorneys are seeing a change in the landscape of federal crimes. On the same day as United States Attorney General Eric Holder's drug charges and mandatory minimum speech, the DOJ released an eight-page brochure entitled "Smart on Crime: Reforming the Criminal Justice System for the 21st Century." In that brochure, the DOJ announced that, to assist in the shift away from the nation's system of "mass incarceration," it was henceforth going to follow a series of principles in its Smart on Crime Program, including a prioritization of prosecutions to focus on the most serious crimes and a reformation of sentencing to eliminate unfair disparities and reduce overburdened prisons.

Attorney General's ABA Speech on Drug Charges Mandatory Minimums

In a major speech on drug charges and mandatory minimums to the Annual Meeting of the American Bar Association on August 12, 2013, United States Attorney General Eric Holder amplified that message by stating that "too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason"; and that "we cannot simply prosecute or incarcerate our way to becoming a safer nation." Among the many memorable highlights of his speech, AG Holder made the following observations:

Attorney General's Proposed Federal Crimes Sentencing Changes

In a series of announcements last month, Attorney General Eric Holder proposed a number of sweeping changes to the Federal Government's federal crimes sentencing practices and policies that could result in real and significant reforms to a bloated system that incarcerates "too many Americans . . . for far too long, and for no good law enforcement reason." The centerpiece of his proposals was a Memorandum to all U.S. Attorneys in which AG Holder "mandated a modification" of the DOJ's charging policies under 21 U.S.C. § 841 so that prosecutors "should decline to charge the quantity necessary to trigger a mandatory minimum sentence" if the defendant meets certain specified criteria as a nonviolent, low-level drug offender. It may just be a lot of cheap talk or a lot of political grandstanding, but the measured words of Attorney General Eric Holder, repeated in a number of different contexts last week, give some reason to hope that - at long last - the message may be getting through to the top echelons of government: America's decades-long war on crime is failing. After noting that there is too much incarceration; too much prison overcrowding; and too much recidivism, Attorney General Holder said that the criminal justice system was "broken," and he called for significant and systemic reforms, including major changes to the "draconian" mandatory minimum sentencing system that is currently in place.

Use of Drug Charges Mandatory Minimums Under 21 USC Section 851

The Kupa decision by District Judge John Gleeson of the E.D.N.Y. is an amazing and memorable indictment of the "illegitimate" and deeply entrenched practice of federal prosecutors who use the sentencing enhancements, known as mandatory minimums, authorized by 21 U.S.C. § 851 as a "sledgehammer" to coerce defendants into accepting guilty pleas in drug charges rather than going to trial.

Federal Crimes Sentencing Changes in Drug Laws

Following up on his recent proposals to reduce the use of mandatory minimum sentences in federal drug crimes involving non-violent, low-level drug offenders, United States Attorney General Eric Holder has now issued a new directive to all Assistant United States Attorneys advising them how to apply the new policies retroactively.

Federal Crimes Sentencing Guidelines Career Offender Status

Regarding the federal crimes sentencing guidelines career offender designation, the Eleventh Circuit holds that a youthful offender eighteen years or older who pleads guilty and is adjudicated is considered to have sustained a conviction for purposes of the Guidelines career offender enhancement, even if state law does not consider him "convicted."

Possession of A Controlled Substance Conviction Overturned

In Smith v. State, 38 Fla. L. Weekly D2172b (Fla. 2nd DCA 2013), Smith sought review of his judgment and sentence for possession of a controlled substance (oxycodone) and possession of paraphernalia. Smith argued that the trial court erred in denying his motion for judgment of acquittal because the state failed to present sufficient evidence to establish Smith's constructive possession of the controlled substance and paraphernalia.

Rules for Withdrawing a Guilty Plea after Sentencing

The Florida Supreme Court in Campbell v. State, 38 Fla. L. Weekly S727a (Fla. 2013) found that a defendant is not entitled to withdraw a plea of guilty or nolo contendere following the rendition of a sentence, based solely on the trial court's failure to formally accept the plea as set forth in Florida Rule of Criminal Procedure.

Who Knew Joining the 'Mile High Club' Was a Federal Offense?

Joining the infamous "Mile High Club" -- having sex on an airplane -- may seem like a thrill for some, but getting caught will not be pleasant, as one couple recently discovered. A man and woman were arrested in June after allegedly engaging in sexual behavior on an Allegiant Air flight.

Florida Supreme Court Prohibits Drugs From Being Comingled Prior to Testing

Defendant was convicted in the Circuit Court of trafficking in cocaine in amount more than 200 grams, but less than 400 grams. The District Court of Appeal, affirmed. The Florida Supreme Court in Greenwade v. State, 38 Fla. L. Weekly S717a (Fla. 2013) held that evidence did not establish quantity element of trafficking charge.

Felon in Possession Convictions Violate Double Jeopardy

In Bell v. State, 38 Fla. L. Weekly D2105b (Fla. 2nd DCA 2013), Bell sought review of his convictions and sentences for felon in possession of a firearm and felon in possession of ammunition. Bell contended that the dual convictions violated double jeopardy.

Federal Mortgage Fraud Case to be Decided by Supreme Court

In a white collar mortgage fraud case, how does a district court calculate the "offset value" under the Mandatory Victims Restitution Act when some of the money obtained through a fraudulent loan is returned by giving the lenders the collateral that secures the money. The Supreme Court of the United States granted a writ of certiorari in Robers v. United States, No. 12-9012 to decide this issue. This matters for clients when, due to market forces, the value of the collateral declines after foreclosure and before the lender sells the collateral.

Ineffective Assistance of Counsel

The Sixth Amendment right to counsel requires not only that a person accused of a crime have the assistance of counsel for his or her defense, but also that such assistance be "effective." Ineffective assistance of counsel is established when a defendant shows two things: first, that trial counsel's performance was inadequate in light of prevailing professional norms at the time of trial; and second, that the ineffective performance resulted in a fundamentally unfair or unreliable result.

Florida Defendants Challenge Asset Forfeitures in Federal Crimes

In 2007, a grand jury indicted a husband-and-wife pair of medical equipment sales representatives for federal offenses including conspiracy, fraud and money laundering. Apparently, when hospitals bought new medical equipment, many were only too happy to let the sales reps take the used equipment away. Since their employers didn't want it, the reps resold the equipment on the "gray market" in Florida.

Criminal Defense: Youthful Offenders

A juvenile defendant is an individual under the age of 18 who is facing charges within the juvenile justice system. Unlike the criminal justice system (i.e. adult court), the juvenile justice system is geared towards rehabilitation rather than punishment. Thus, the detention or incarceration of a juvenile defendant is considered a last resort.

Witness Identifications: Often Incorrect?

When an eye-witness identifies a suspect to law enforcement, it rarely occurs from a line up of people through a large glass window, as commonly seen on television shows like "Law and Order." Witnesses will often identify a person from an assortment of six photographs, called a photopack. Often times, law enforcement will use a procedure in which a person's photograph will look different from all of the other photographs in the photopack.

Nonconsensual DUI Searches Are To Be Reviewed On A Case-By-Case Basis

In Missouri v. McNeely, 133 S. Ct. 1552 (2013), the United States Supreme Court held that in DUI investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.

New Trial After Newly Discovered Evidence

Obtaining a new trial is often done through appeals/post-conviction motions. Pursuant to the Florida Supreme Court in Jones v. State, 27 So.3d 11 (Fla. 2010), in order to obtain a new trial based on newly discovered evidence, a defendant must meet two requirements. "First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence. Second, "the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.

Appellate Court Cautions Against Pro Se Post-Conviction Motions

In a recent post-conviction case, the Fourth District Court of Appeal prevented a pro se defendant from filing documents with the Court and considered disciplinary procedures where the Defendant had filed repetitive and untimely motions.

Ninth Circuit Rules Drug Charges Entrapment, Relates to Alleyene

In a federal drug case, United States v. Cortes, No. 12-50137 (9th Cir. Oct. 9, 2013), the Ninth Circuit reversed a conviction for conspiring to possess with intent to distribute more than five kilograms of cocaine, finding an error with the judge's instruction to the jury on the defense of entrapment and holding that a sentencing entrapment claim must be tried to the jury when that claim will affect the minimum or maximum sentence.

Veteran Tampa police supervisor accused of public benefits fraud

It has been a rough couple of weeks for the Tampa Police Department. On. Sept. 27, the department fired a detective for allegedly stealing from the evidence room and a DUI supervisor for lying during an investigation into whether the DUI arrest of a local lawyer was a set-up, as we discussed in August.

Federal judge calls out SEC's disparate, murky enforcement policy

Five years have passed since 2008's devastating financial meltdown, and the anniversary has prompted many pundits to ask why so few of the main players on Wall Street and among the big banks have faced federal criminal charges. Few if any top executives have been charged with securities fraud, even when the Securities and Exchange Commission apparently had substantial evidence of wrongdoing. Instead, the SEC has typically dealt with these organizations and their leaders through civil enforcement actions.

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