Federal Crimes

Florida Minimum Mandatory Sentence Laws are Unfair and Unnecessary

Published on: July 4, 2013 | by Lasnetski Gihon Law

As we have discussed several times on this site in the past, minimum mandatory sentences are among the most counterproductive and just plain stupid ideas our government has come up with, and that is saying a lot given the state of our government these days. Among other problems, they are basically laws created by people who have no idea about the details of the particular cases, and they take the discretion away from the people who know the facts of the case the most and the circumstances of the parties the most. They also give tremendous power to the police and the prosecutor that can be abused to leverage pleas and harsh sentences in cases and against people who do not deserve them.

For instance, if a person is charged with committing certain crimes in Florida and fires a gun in the process, without hitting or injuring anyone, that person can face a minimum mandatory sentence of twenty years in prison. There are numerous cases, perhaps most cases, involving conflicts between people where there is a real gray area as to whether the suspect is guilty of a crime, fired a gun in self defense or did nothing wrong at all. Even where a person is guuilty of such a crime, there are often mitigating factors in the case that make it very clear that twenty years is way too harsh of a sentence. However, in these cases, the state can charge the twenty year mandatory minimum crime and because that gives the state so much leverage, it forces the defendant to agree to a deal and enter a plea, often receiving a lighter sentence. The state can always waive the minimum mandatory sentence. So, in many cases where the defendant has a valid self defense claim or other defense, the defendant may end up taking a year or two in prison or probation and become a convicted felon even though he/she may not be guilty. But because you never know what a jury would do, and you do know there is a twenty year mandatory minimum penalty if the jury finds you guilty, it is way too risky to fight it in court. In that sense, which is fairly common, the mandatory minimum law severely compromises, or even eliminates, a person’s constitutional right to trial.

Another case we see often where this is a serious problem is in prescription pill cases. The laws in Florida are very harsh for possession of pills such as Hydrocodone without a prescription. It does not take many pills to qualify for a trafficking charge. The low level trafficking charges come with a three year mandatory minimum prison sentence. And the mandatory minimum prison sentences go up from there. There are many people out there who have pain pills without a prescription who are not criminals and do not deserve a felony conviction and years in prison. In many cases, the only difference between a drug trafficker (under Florida law) and a law-abiding person with a legitimate medical prescription is being born to a rich family or having a job that offers decent health insurance. In other words, a lot of people have a need for prescription drugs due to auto accidents, workplace injuries and other problems. Not everyone has health insurance to pay for those drugs. However, because of the Florida drug laws and mandatory minimum prison laws, the less fortunate go to prison while the more fortunate are popping pills with impunity.

Could the Federal Fair Sentencing Act Apply to All Federal Inmates Previously Charged With Crack Cocaine Crimes

Published on: June 19, 2013 | by Lasnetski Gihon Law

As we have discussed on here several times, the federal government finally got around to reducing (not eliminating) the huge disparity between sentences for powder cocaine crimes and crack cocaine crimes. Under the old law, which was in effect for a long time, the difference between prison sentences for crack cocaine crimes versus powder cocaine crimes was about a 100-1 ratio. In other words, someone who possessed a quantity of crack cocaine was likely to get a much higher prison sentence than a similarly situated person who possessed the same quantity of powder cocaine.

It was clear that this sentencing disparity in federal drug cases was having a disproportionately negative effect on African-American defendants. There was no denying that they were the ones primarily serving these inflated sentences. There was also little to no justification for why crack cocaine sentences were so much worse than powder cocaine sentences.

Congress did change the law with the 2010 Fair Sentencing Act. While it did bring crack cocaine and powder cocaine sentences closer together, there is still a pretty large disparity between those cases. The ratio in sentences between crack cocaine and powder cocaine cases is now about 18-1.

Overpopulation of Federal Prisons Largely Due to Drug Crimes

Published on: October 13, 2012 | by Lasnetski Gihon Law

As the federal deficit skyrockets on a continuing basis, one area that is not discussed very often as a contributing factor is the amount of money allocated to the Department of Justice, the building of more prisons and the overcrowding of the prisons we already have. People may assume money going towards crime and punishment is well spent, but a quick look at the spectacular failure of the ongoing war on drugs should negate any such assumption.

According to a recent report from the Government Accountability Office (GAO), the growth in the number of federal prisoners is increasing faster than the country’s ability to house them. When one considers that it is expensive for taxpayers to pay for each federal prisoner, that growth adds up to an expensive problem. Even worse, the GAO noted that this rapid growth in federal prisoners is largely due to people being arrested, charged and sentenced for drug crimes. From 2006 to 2011, the federal prison population increased by 9.5%, which was 7% greater than the increase in prison capacity. As a result, the number of prisons that were overcrowded with federal prisoners increased from 36% to 39% during that time period. That percentage is expected to increase to 45% by 2018. Who are all of these prisoners packing the federal prisons and costing taxpayers millions of dollars? Last year, 48% of federal prisoners were drug offenders, and they were serving prison sentences that were 2.5 years longer than in the mid-1980’s on average.

The war on drugs is a colossal failure, and it is possibly the most expensive failure in the history of the country since there is no end in sight and it is only getting bigger. The war on drugs is expensive on so many levels. Overcrowded prisons is just one of them.

Some Statistics on the Cost of Federal Prisoners

Published on: September 13, 2012 | by Lasnetski Gihon Law

The United States Department of Justice (DOJ) recently issued a statement indicating what everyone else already knows- continuing to increase prison populations is getting extremely expensive and is unsustainable in the current economic environment (or any other realistic environment for that matter). The DOJ asked the United States Sentencing Commission to try to reduce the costs associated with federal prisons. The report did not, however, indicate how they expected the costs to be reduced.

The report did come with some sobering statistics about our federal prison population. The conclusion is that regardless of whatever our politicians want to tell us about how conservative they are and how they want to reduce the size of government, government keeps getting bigger and bigger and more and more money is wasted.

In 1980, there were only 19,000 prisoners with fewer than 25% there for drug crimes. By 2010, there were 190,000 federal prisoners with more than 50% being there for drug crimes. That is what happens when you wage a wasteful and self-defeating war on drugs. The other thing that happens is the government, i.e. the taxpayers, pays a lot of money to keep this ineffective system going. Expenditures on the state, local and federal levels increased from $32.6 billion in 1984 to $186.2 billion in 2006. We are not asking anyone to hold his/her breath, but with the country in debt and terrible shape economically, maybe someone somewhere will understand that spending so much money on ineffective policies is not the best use of taxpayer money.

Lesser Crack Cocaine Sentences Apply to Federal Defendants in Pipeline Crack Cocaine Cases

Published on: July 9, 2012 | by Lasnetski Gihon Law

As we have discussed on our criminal defense lawyer blog in the past, the federal sentencing guidelines, which play a significant role in the ultimate sentence a federal criminal defendant will receive, used to be much more severe for crack cocaine cases as opposed to powder cocaine cases. They still are, however the wide gap has been narrowed to some degree. A couple of years ago, the rules for crack cocaine and powder cocaine sentencing in federal court changed to make sentences somewhat more comparable for powder and crack cocaine cases involving similar amounts (basically, the sentencing disparity went from 100-1 to 18-1).

The new rules clearly apply for the benefit of anyone with a new crack cocaine case. One question was whether the lesser crack cocaine guidelines apply to people who pled guilty or were convicted at trial prior to the new rules but were scheduled to be sentenced after the new rules went into effect in 2010. The United States Supreme Court recently decided that the lesser crack cocaine sentencing rules do apply to people in the pipeline at the time, i.e. people who were convicted prior to the rules going into effect but sentenced after the rules went into effect. As a result, there are thousands of defendants who were convicted of crack cocaine crimes who could have their sentences reduced under the new crack cocaine sentencing rules.

Defendant Impersonating Criminal Defense Lawyer Convicted in Federal Court

Published on: June 22, 2012 | by Lasnetski Gihon Law

A defendant from California who was accused of practicing law as a criminal defense lawyer without a license was charged with a variety of federal crimes, including mail fraud and wire fraud, and ultimately convicted and sentenced to nine and a half years in federal prison. The defendant never went to law school and never took any bar exams. However, he managed to get admitted to several federal courts by filing false admission applications to those federal courts, and he handled many criminal cases as a criminal defense lawyer in several states.

In court, defendant’s real criminal defense lawyer argued that the federal government did not establish all of the necessary elements of wire fraud and mail fraud. In order to commit the federal crime of wire fraud, there must be some aspect of the crime that is transmitted by wire to a different state for the purpose iof executing a scheme to defraud another. In order to commit mail fraud, a defendant must use the mail system to further the scheme to defraud.

For the wire fraud charge, the government focused on the defendant’s website which he used to promote his fraudulent criminal law practice. The government called a witness from the defendant’s website hosting and domain name registration company. That witness testified that the server, which processes and stores data for the website, was located out of state in Virginia and anyone in any state could and did view the website. The court went into a lengthy and technical discussion about how internet content crosses state lines when people from other states view it. At the end of the discussion, the court ruled that posting a website that was hosted in a different state and viewed by people in different states was sufficient to satisfy the interstate requirement for a wire fraud conviction.

Does Violating an Employer’s Computer Policy Violate the Federal Computer Fraud and Abuse Act?

Published on: May 7, 2012 | by Lasnetski Gihon Law

The federal Computer Fraud and Abuse Act (CFAA) was intended to be an anti-hacking criminal statute to go after people who hack into databases and computer systems without authorization to misappropriate data. However, certain prosecutors have attempted to expand their powers under the Act and use the Computer Fraud and Abuse Act to prosecute people who were not intended to be covered by the law

In a federal criminal case out of California, prosecutors charged a defendant for violating the Computer Fraud and Abuse Act for violating certain computer-related policies of his employer. In this case, the defendant was an employee of an executive recruiting company named Korn/Ferry. He left the company to start a competing company. The defendant contacted some of his former co-workers who were still working at Korn/Ferry and asked them to download confidential information from the Korn/Ferry computer system to assist the defendant with his new company. The employees were allowed to access the Korn/Ferry computer database because they still worked there. However, Korn/Ferry’s policies did not allow them to use the information in the database to help a competing business.

The United States Attorney’s Office charged the defendant with violating the Computer Fraud and Abuse Act for aiding and abetting the Korn/Ferry employees in exceeding their access to the Korn/Ferry computer system to defraud the company. The criminal defense attorneys moved to dismiss the CFAA charges. They argued that the CFAA was intended to punish hackers who access computer databases without authorization, not people who have authorization to access a computer database but misuse the information in violation of company policy.

Federal Prisoners Convicted of Crack Cocaine Charges Are Being Released

Published on: November 24, 2011 | by Lasnetski Gihon Law

As we have discussed several times in the past, the old laws dealing with prison sentences were very different for crack cocaine crimes as opposed to powder cocaine crimes. Basically, a person charged with an amount of crack cocaine often faced a much more severe prison sentence than a different person charged with the same amount of powder cocaine. After years of incredibly disparate sentences for similar drug crimes, quite often detrimentally affecting African-Americans, Congress finally acted to minimize the difference with the Fair Sentencing Act of 2010. The difference was not eliminated altogether. However, because the differences were so tremendous before, there was room to make significant changes. The ratio of prison sentences for crack cocaine crimes versus powder cocaine crimes went from 100 – 1 to 18 – 1. There is still a pretty big difference, but it is much better than before.

The new rules are now in effect for federal crack cocaine and powder cocaine crimes. Anyone who is charged with a crack cocaine crime going forward will benefit from the less stringent sentencing rules. Due to a United States Sentencing Commission decision, the new rules are also being applied retroactively, which means people who were arrested and convicted for crack cocaine crimes in the past and sentenced to prison under the old rules can challenge that sentence and request a modified sentence more in line with the new rules. Many people have recently been successful with that challenge.

Statistics show that approximately 1,800 people in federal prisons on crack cocaine charges are eligible for immediate release under the new sentencing rules. Additionally, about 12,000 federal inmates convicted of crack cocaine charges are eligible for reduced prison sentences.

FBI Taking More Aggressive Approach to View Personal Emails and Internet Usage

Published on: November 12, 2011 | by Lasnetski Gihon Law

The FBI is using more aggressive means to get personal emails and information about internet usage. In the past, the FBI was permitted to use administrative subpoenas that were not initially presented to a judge for review. These administrative subpoenas, or national security letters, were sent to internet service providers at the discretion of the FBI asking internet service providers to disclose information about personal emails and what websites the targets of the subpoenas had visited. Upon receiving the national security letters, the internet providers were obligated to refrain from alerting its customers that the FBI was requesting the information and the internet service provider was providing the information.

More recently, perhaps due to backlash from the secret disclosure of this private information, the internet service providers were limiting the information they would provide to the FBI in response to these national security letters. As a result, the FBI has shifted its strategy and asked the courts for orders, called business records requests, that require the internet service providers to release the extensive private information previously obtained by the national security letters. According to a recent article, in the first few months of this year, more than 80% of the business record requests made by the FBI were for internet records, and the FBI made more than four times as many business record requests in 2010 compared to the prior year.

Jacksonville Postal Employee Steals Merchandise From the Mail And is Charged With Federal Crime

Published on: October 18, 2011 | by Lasnetski Gihon Law

A postal supervisor with the United States Postal Service was arrested for stealing merchandise that was ordered from online stores and shipped through the mail. The defendant was sentenced to three years in federal prison for stealing over $150,000 in merchandise. One of the ways the defendant was tracked was through pawn shops in Florida and Georgia where the defendant sold the stolen merchandise. When a person pawns an item at a pawn shop, the pawn shop will keep identifying information about the person such as a picture, signature and fingerprint card.

Normally, the theft of store merchandise and most other items will be a crime charged in state court. However, the theft of mail comes under the jurisdiction of the federal government and will be prosecuted by the United States Attorney’s Office. Therefore, a person charged with a mail theft charge will face an entirely different criminal system with a different way of determining a proper sentence, if convicted. While this case involved more than $150,000, theft of any mail can still be a federal crime. When a defendant is charged with a federal crime in federal court, the rules are quite different from the majority of cases that end up in state court. When charged with any federal crime, it is important to seek the advice and counsel of criminal defense lawyers who are familiar with the different system and rules involved in the federal system.

if you have been arrested for a federal crime and would like to know your rights in the federal system, feel free to contact us for a free consultation.