West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

Federal law states that anyone who uses a firearm in connection with a crime of violence or a drug-trafficking crime is subject to enhanced punishment.  But what exactly does the word "uses" mean?  Although the statute itself does not define this word, the United States Supreme Court has discussed its meaning in at least three different cases.  An article that I posted on my Federal Criminal Lawyer website examines those cases.

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          Federal Rule of Criminal Procedure 5 states in part that "[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, . . ., unless a statute provides otherwise."

          But what happens if the police violate this rule and the arrested person confesses to committing a crime after he is arrested but before he is taken before a judge?  An article that I posted on my Federal Criminal Lawyer website looks at the U.S. Supreme Court case of Corley v. United States which addresses this question.

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          In a recent case called Michigan v. Fisher, the United States Supreme Court ruled that a police officer may enter a home without a search warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.  An article that I posted on my Federal Criminal Lawyer website examines the Fisher case.

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I'm pleased to announce the launch of another FAQ style website for our firm. The Federal Criminal Lawyer FAQ, located at www.federalcrimefaq.com, answers common questions on a wide variety of federal crime topics, including sentencing, defenses, and types of federal crimes.

The range of topics and questions answered run from standard definitions to more complex legal issues. Here are some examples:

• What is the difference between federal and state law?
• Can you avoid a minimum mandatory sentence in federal court?
• What is a criminal defense?

This website is our second legal FAQ collection, and follows on the success of the Florida Criminal Records FAQ.  It's our goal to have both these websites evolve over time, and to expand the depth of information provided.

Drop by and check it out!

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A minimum mandatory sentence is a minimum prison sentence that a judge must impose for a particular crime, without consideration of mitigating circumstances. In federal court, there are only two ways to avoid such a sentence: safety valve and cooperation.  An article that I posted on my Federal Criminal Lawyer website examines these two provisions of federal law.

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          The Double Jeopardy Clause, which is contained in the Fifth Amendment to the United States Constitution, states that no person shall "be subject for the same offense to be twice put in jeopardy of life or limb."

          The Double Jeopardy Clause is designed to protect individuals accused of committing crimes against the following three things:

1. It protects against a second prosecution for the same crime after acquittal;
2. It protects against a second prosecution for the same offense after conviction; and
3. It protects against multiple punishments for the same crime.

          Whether or not the Double Jeopardy Clause was violated was the issue decided just last month by the United States Court of Appeals for the Eleventh Circuit in the case of United States v. McIntosh.  In that particular case, Mr. McIntosh was indicted for the crimes of possession with intent to distribute five kilograms of crack cocaine and carrying a firearm during and in relation to a drug trafficking offense.  Two months later, he pled guilty to both crimes.

          The following month, the Assistant United States Attorney handling the case advised the judge and McIntosh's lawyer that the date contained in the indictment pertaining to when the two crimes occurred was incorrect.  A month after that, McIntosh was indicted again for the exact same crimes, but the new indictment contained the correct date regarding when the offenses happened.

          In response, McIntosh's attorney filed a motion to dismiss the second indictment in which he argued that the Double Jeopardy Clause prohibited McIntosh from being prosecuted for the exact same charges a second time.  The U.S. District Judge deciding the motion ruled against McIntosh in part because of his belief that jeopardy did not attach when McIntosh pled guilty since the first indictment was defective.

          Fortunately for Mr. McIntosh, the appellate court that heard his appeal disagreed with the lower-court judge and ruled that the motion to dismiss should have been granted.  In doing so, the Eleventh Circuit Court of Appeals reasoned that the Double Jeopardy Clause "plainly protects against a second prosecution for the same offense after conviction.  The acceptance of McIntosh's unconditional plea of guilt to the first indictment constituted convictions for the drug and firearm offenses:  The acceptance of an unconditional plea is itself a conviction.  Like a verdict of a jury it is conclusive.  More is not required; the court has nothing to do but give judgment and sentence.  A second conviction for the same offense violates the Double Jeopardy Clause."

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          Imagine the following scenario:  You have been charged in federal court with one count of conspiracy to distribute crack cocaine.  After reviewing the prosecutor's evidence against you, you decide that it is in your best interest to plead guilty to the one count that you have been charged with.  Your lawyer then obtains a written plea agreement from the U.S. Attorney's Office which requires you to admit that you are, in fact, guilty of conspiring to distribute crack cocaine.  Towards the end of the plea agreement, however, is a paragraph that also requires you to admit that you engaged in money laundering even though you have not been charged with committing that particular crime. 

          So what you may ask?  You haven't been charged with money laundering; therefore, there's no harm in admitting that you engaged in that activity as part of the conspiracy to distribute crack cocaine.  Wrong!

          Section 1B1.2(c) of the Federal Sentencing Guidelines states that "[a] plea agreement (written or made orally on the record) containing a stipulation that specifically establishes the commission of additional offense(s) shall be treated as if the defendant had been convicted of additional count(s) charging those offense(s)."  In other words, by admitting in your plea agreement that you engaged in money laundering, the judge who will later sentence you will treat it is as if you had been formally charged and convicted of money laundering even though that is not the case at all.  More importantly, the amount of prison time that you are facing may well increase because of your inadvertent admission to money laundering.

          That is precisely what happened in the case of United States v. Miller.  In that case, Mr. Miller was originally charged with committing the two crimes of transporting computer visual depictions of minors engaged in sexually explicit conduct and possession of computer disks containing depictions of minors engaged in sexually explicit conduct.  He eventually pled guilty to both crimes. However, in his plea agreement he also stipulated that he had used email to solicit teenage boys to engage in sexual activity.

          Several weeks after pleading guilty, Miller learned for the first time that the amount of prison time he was facing was substantially more than what he had originally thought it would be because of the emails he had sent.  Miller objected to this increase saying that these emails were not part of the crimes he had pled guilty to because they did not occur during either the preparation of his crimes or in the actual commission of them.

          The appellate court hearing Miller's case rejected these arguments in part because of the stipulation contained in his plea agreement combined with the language contained in Section 1B1.2(c) of the Federal Guidelines.

          The lesson to be learned, of course, is that someone who is considering pleading guilty to a federal crime should be concerned not only about the actual crime he is pleading guilty to but also about any additional facts that he is considering agreeing to as part of the plea agreement.

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          It is often the case that the evidence against persons charged with federal crimes is overwhelming while the sentences imposed are severe.  Because of that, many people who are charged with federal crimes are more interested in entering into a plea agreement with the prosecutor (who is called an Assistant United States Attorney) than they are in having a trial where their guilt or innocence is decided by a jury consisting of twelve members of the community.

          One frequently-employed way of getting a reduced sentence in a federal case is for the accused (who is referred to as the defendant) to provide substantial assistance to the prosecutor and to other law enforcement agents.  Such assistance often consists of providing information about co-defendants or about other crimes that the defendant has knowledge of.  Defendants (and their lawyers) tend to find such arrangements to be nerve-wracking because of the possibility that the information provided by the accused to law enforcement may later be used by the prosecutor to charge the defendant with additional crimes. 

          It is partly because of that concern that proffer agreements exist.  These written agreements typically provide that the statements made by a defendant during his meeting with law enforcement agents may not be used against him at his trial unless he says something to the jury that differs from what he told the agents.  It is common for such agreements to explicitly state that a defendant is being offered only limited use immunity for nonviolent crimes, not derivative use immunity or transactional immunity.

          Earlier this month, the Eleventh Circuit Court of Appeals decided the case of United States of America v. Schwartz which addresses the issue of proffer agreements.  This case is significant because it narrows the protection that proffer agreements were traditionally thought to have provided.  In the Schwartz case, the prosecutor sent a proffer letter to the lawyer for one of the defendants which gave the defendant limited use immunity in exchange for the information that he would provide to law enforcement agents.  After the defendant agreed to this arrangement, he spoke with agents on four different occasions.  One of those agents then went before a grand jury and testified as to what the defendant had stated at the four meetings.  The grand jury, in turn, returned a superseding indictment against that particular defendant.  Later, when the accused learned of what had occurred, he filed a motion asking the judge to dismiss his indictment because the prosecutor used what he believed were immunized statements to obtain the superseding indictment.

           On appeal, the Eleventh Circuit Court disagreed with the defendant in part because the proffer letter did not directly address whether the defendant's immunized statements could be presented to a grand jury.   In addition, the proffer letter stated that the accused waived his right to have a Kastigar hearing in the future.  A Kastigar hearing, which has its origin in the United States Supreme Court case of Kastigar v. United States, is a hearing to decide whether the prosecution presented immunized testimony to a grand jury in violation of a person's privilege against self-incrimination that is guaranteed to all of us by the Fifth Amendment to the U.S. Constitution.

           The upshot of the Schwartz case is that lawyers for clients who are charged with federal crimes must scrutinize the language contained in proffer agreements so that their clients do not unwittingly provide prosecutors with evidence that is later used against them in court.

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