Federal Sentencing Guidelines | Judge's Survey

Federal Criminal Defense Attorney, Lawyer W.F. ''Casey'' Ebsary, Jr. of Tampa, Florida just received an interesting tip from a friend at the Federal Defender's Office for the Middle District of Florida. It concerns a recent survey by the the United States Sentencing Commission. The Sentencing Commission initiated a survey of United States District Court Judges between January 2010 and March 2010. Our source states "there are some pretty interesting results. For instance, 71% of the respondents thought that the guidelines for the receipt of child pornography (with a minimum mandatory sentence) were too high. 70% of the respondents believed that the crack cocaine guidelines were too high. 70% of the respondents believed that the child pornography (possession) guidelines were too high."

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Federal Prosecutor's Discovery Procedural Memo

Tampa Federal Criminal Defense Attorney Casey Ebsary has obtained a copy of a recent memo to  United States Department of Justice / Assistant United States Attorneys on Procedures they are to follow in prosecuting federal crimes in Federal Court, including the Middle District of Florida.

MEMORANDUM FOR DEPARTMENT PROSECUTORS

The discovery obligations of federal prosecutors are generally established by Federal Rules of Criminal Procedure 16 and 26.2, 18 U.S.C. §3500 (the Jencks Act), Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United States, 405 U.S. 150 (1972). In addition, the United States Attorney’s Manual describes the Department’s policy for disclosure of exculpatory and impeachment information. See USAM §9- 5.001. In order to meet discovery obligations in a given case, Federal prosecutors must be familiar with these authorities and with the judicial interpretations and local rules that discuss or address the application of these authorities to particular facts. In addition, it is important for prosecutors to consider thoroughly how to meet their discovery obligations in each case. Toward that end, the Department has adopted the guidance for prosecutors regarding criminal discovery set forth below. The guidance is intended to establish a methodical approach to consideration of discovery obligations that prosecutors should follow in every case to avoid lapses that can result in consequences adverse to the Department’s pursuit of justice. The guidance is subject to legal precedent, court orders, and local rules. It provides prospective guidance only and is not intended to have the force of law or to create or confer any rights, privileges, or benefits. See United States v. Caceres, 440 U.S. 741 (1979).

Source: The complete Memorandum can be found at http://www.justice.gov/dag/discovery-guidance.html

Federal Prosecutor's Discovery Procedural Memo | Tampa Federal Criminal Defense Attorney

Confession Tossed | Promises of Immunity

Federal Defense Attorney in Florida got a great tip from our friends at the Federal Defenders in Tampa and Orlando. New case involved a State agent / detective who promised a defendant he would not be prosecuted. Then he told the Feds about the evidence he gathered from the defendant. Federal Prosecutors use the evidence and the Secret Service busts him. The Eleventh Circuit held that a State Policeman's promises of non-prosecution / immunity prevented the defendant from making a voluntary, knowing, and intelligent waiver of his Miranda rights.

The Court also held that, even if, the defendant had not been in custody at the time of the confession (making Miranda warnings unnecessary) the confession was involuntary under the Due Process Clause. The only interpretation of the State detective's representations was that the information the defendant provided would not be used against him by state cops, feds, or anyone else. Circumstances of the defendant's statements were enough to render his confession involuntary.

The Court rejected the Fed's  argument that the state detective's promise of non-prosecution did not bind the Feds and the United States Government. The Eleventh Circuit held that an involuntary confession is inadmissible in federal prosecutions even if improperly coerced by state police. See: Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52 (1964). The Court also required the suppression of the physical evidence seized as the fruit of the coerced confession.

Source: Fed Defender MD Fla and http://www.ca11.uscourts.gov/opinions/ops/200910794.pdf


Federal Defense Attorney in Florida

Miranda | Must Speak Up to Remain Silent

Tampa Criminal Defense Expert, Attorney, and Lawyer, has just completed a review of today's ruling on custodial interrogations by police. The United States Supreme Court under Miranda, just ruled you must speak up to remain silent. Miranda v. Arizona, 384 U. S. 436. The cops interrogated a defendant, he never said he wanted to remain silent, that he did not want to talk with the police, or that he wanted an attorney. In fact, the defendant was mostly silent during the three-hour interrogation. Silence during interrogation does not invoke the right to remain silent. Miranda right to counsel must be invoked unambiguously. See Davis v. United States, 512 U. S. 452, 459. The Court rejected coercion: 1. The defendant did not claim police threatened or injured him or that he was fearful; 2.  The interrogation took place in a standard-sized room in the middle of the day; 3. A 3-hour interrogation is not inherently coercive.

Source: Berghuis v. Thompkins, No. 08-1470 United States .Supreme Court (June 1, 2010)


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