South Florida Criminal Defense Lawyer Blog

Today in Alaska, an amendment permitting recreational marijuana use goes into effect. In November, 2014, the citizens of Alaska in a statewide vote to amend the Alaska constitution voted 53% for and 47% against this amendment. The vote, a majority, prevailed and the new amendment became fundamental law for Alaska. This makes Alaska the third state in the United States to legalize recreational use of marijuana.  The new status of marijuana makes it legal for people over the age of twenty-one to consume personal use amounts of cannabis. It is still illegal to sell marijuana and illegal to purchase marijuana.  Read the full text of the amendment here.

Prior to the Alaska amendment, Washington and Colorado were the only states permitting recreational use of marijuana. Medical use is different and requires a bona fide medical need before it can be dispensed. Alaska now must implement the amendment and deal with the issues of public consumption, intoxication, and removing criminal sanctions for possession and use of marijuana.

The initiative in Alaska left many issues to be resolved. For example, the initiative and amendment does not permit smoking marijuana in public. Smoking in public does not deal with the consumption by other means in public, such as drinking fluids containing marijuana and cannabis extracts. Nor does it deal with eating consumables containing cannabis.  The City of Anchorage, Alaska, has an ordinance punishable by a fine of one hundred dollars if cannabis is smoked in public, but no definition of what the word public means. Reportedly, police in Anchorage are ready to issue citations, but the officers have not been instructed on what constitutes a violation of the city ordinance. Alaskan lawmakers have to define the scope of permitted consumption and any criminal violations which involve the abuse of the right to consume marijuana. The State board regulating alcohol has been delegated authority to regulate but the empowering statute under administrative law is open to interpretation and challenge, and so most of these issues will be resolved in proposed legislation and in criminal courts.

A larger question remains as to federal criminal law and their enforcement in states such as Colorado, Washington and now Alaska. Federal criminal law clearly identifies cannabis as a controlled substance, and federal laws regulate all controlled substances.  The possession, sale and transportation of marijuana is a crime under federal law. States cannot overrule federal laws and the conflict creates very real problems. For example, can a resident of Alaska purchase recreational marijuana using a credit card without exposing the credit card company to criminal charges?  If one writes a check, and thereby uses interstate commerce banking channels, is the bank subject to criminal prosecution for processing a check? If one mails marijuana within Alaska, or uses a commercial shipper such as FedEx, does that expose the carrier to arrest and prosecution under federal law? The answer is clearly YES. The question is whether or not the U.S. Attorney will prosecute under federal law, and that is a policy and political question for the federal government to resolve.

Mortgage fraud in South Florida continues to be in the news, as a multi-agency task force involving both federal agencies and local law enforcement continues to file criminal cases in both state and federal Courts. South Florida federal courts are known to be especially focused on sex crimes and white collar fraud, while medicare fraud and mortgage fraud criminal prosecutions are leading the headlines. When looking at the convictions, specifically for mortgage fraud, Florida has a reputation for long prison sentences.

So, is it true that federal criminal judges in Miami and Fort Lauderdale sentence longer than other districts? A lot more?… Well…in a word, yes, a lot more. More than other parts of the U.S.? Yes. More in the Southern District of Florida (i.e. Miami), than in other parts of Florida? In a word, Yes.  This can be seen in the numbers of mortgage fraud cases filed by the U.S. Attorney in Florida, the total number of defendants charged with mortgage fraud, the number of defendants that decide go to trial and the total amounts of money lost by banks in Miami, Fort Lauderdale and Palm Beach.

Most people who are arrested for mortgage fraud and prosecuted in federal court want to know the sentencing risks: The risk of long sentences if the case results in a conviction, the risk of harsh sentencing by federal judges in Florida for those defendants that plead “open” to the court, and the range of sentences for mortgage fraud by defendants who do substantial assistance, that means agree to testify against other defendants.  It is smart to know your exposure before deciding on a strategy.

Sentencing exposure can be guessed at by the criminal lawyers who do mortgage fraud cases, but it is usually a “seat of the pants” estimate, although there is no need to guess, however, because sentences are compiled by the Sentencing Commission and available online.  Here is what the Sentencing Commission found: t

  • Twice the number of mortgage fraud cases are filed and prosecuted in the Eleventh Circuit, i.e. in Florida than in any other federal district.
  • Nationally, 9.8 % of federal cases involved fraud, and in Florida 18.2 % of the cases involve fraud, which is double.
  • Nationally, 3.1 % of federal criminal cases go to trial, and in Florida double the number of cases go to trial, which is 5.6 %.
  • Prison sentences (in years) are longer in Florida than in other parts of the U.S. Nationwide, as 71.5 % of those charged with fraud go to prison, while in the Southern District of Florida (Miami, Fort Lauderdale and Palm Beach) it is a little higher,  74.0 % of criminal defendants facing fraud charges go to prison.

The reason Florida has a reputation for longer sentences is, firstly, Florida has more mortgage fraud/white collar prosecutions than other parts of the U.S.  Secondly, as the nature of the cases seem to follow a pattern, so does the outcome. It’s not that Florida federal judges give longer sentences than federal judges in other districts, that is simply not the case. What you are seeing is a greater number of fraud cases with outcomes that are above the median. Florida also has more egregious and offensive operators in the housing sector. We see more double HUD form frauds, more dishonest appraisals, more bank employees willing to be a part of fraudulent loans, and more small offices that are not supervised by a compliance officer. That being the case here in Miami, attorneys who do mortgage fraud cases are more experienced and are flown all over the U.S. to represent defendants in other cities.

The Obama administration  has announced that it is expanding the Center for Strategic Counterterrorism Communications efforts to “countermessage” terrorists groups. Propaganda has a long history of use as a governmental tool to enlist public support and oppose groups that disagree with State policies.

The Obama administration has not put forward a legal basis for the use of the internet as an extension of the War Powers Act. In fact, the Obama administration has not stated any legal basis for the use of government speech to obstruct ISIS and other extremist groups from their use of the internet to recruit.   There has been little or no attention to the legal basis upon which the Obama administration is using, and now expanding, governmental presence on internet media, from Tweets, and Facebook to internet chat rooms.



In an article in the New York Times (dated February 16, 2015), it was reported that the Executive Branch is expanding  funding for ‘countermessaging’ recruitment by groups the government considers terrorist enterprises. At the center of the funding is a governmental agency The Center for Strategic Counterterrorism Communication, currently run by Alberto Fernandez, a career foreign service officer and Middle East expert. Mr. Fernandez has announced his retirement and will be replaced by Rashad Hussain, a Muslim-American with reported close ties to the Obama Administration. Funding, currently at five million dollars annually, soon will be increased significantly.   Reportedly the current 350 Twitter accounts used to moderate and infiltrate the “terrorist community” will be expanded. The new plan, it has been announced, will use “digital outreach teams” in an “Information Coordination Cell” to mitigate extremist violence.

The Administration  has stated that “We’re getting beaten on volume” and that to compete with the enlistment efforts of terrorist groups the government will expand exponentially governmental presence in Internet media. The government’s decision to increase funding and expand the use of internet channels and media to influence the enlistment efforts of Muslim extremists is reportedly tied to and a response to, the shootings in France and most recently in Copenhagen.

Administration officials said a recent conference on effective use of social media to blunt extremists as the prompt to the expanded use by the Obama Administration. What has not been reported  is a legal basis for the federal government to use social media as an arm of the executive branch’s powers to act in matters of foreign policy. The issue is not whether it is an effective method to counter the use of social media by extremists groups. The issue is the use of social media by the government to advance policy goals. Policy goals are just that, policy goals and not governmental powers.   As important as it may be in the public arena for the government to effectively respond to domestic and international acts of terrorism against civilians, the lawful exercise of governmental actions to use propaganda as an extension of war powers must be questioned. That the constitution empowers the federal government to field armies in times of war does not empower governments to influence the process of public debate.

Prosecutors have charged “Suge” Knight with one count of Murder and one count of attempted Murder. Reportedly he drove his vehicle at and killed a business associate and nearly killed another man. All this took place in a parking lot in Compton, California.

Authorities at first considered the act as a hit-and-run: it was and is re-filed as murder and attempted murder. The charges were filed against Knight, the owner of Death Row Records, a prominent rap artist promoter and producer. Marion “Suge” Knight was out on bail at that time on felony robbery charges in Los Angeles. Many of you know Suge Knight from his professional football career of twenty-five years ago. Since leaving professional football Mr. Knight (age 49) has been in and out of prison, shot six times last summer and has pending robbery charges.

Marion "Suge" KnightHis lawyers have provided authorities with copies of a video recording of the events, which took place in a “burger” restaurant parking lot. Knight’s lawyers said the video showed that Knight was trying to escape an attack. Authorities, after reviewing the tape, indicated that the video shows him deliberately driving his car over the two men, killing one of the two. Knight faces a prison term of 50 years to life in California under the State’s three-strikes-and-you’re-out Statute. Details of the event indicate that Suge Knight was on a movie set for the movie “STRAIGHT OUTTTA COMPTON” when the events occurred.   Knight’s lawyer, Mr. James Blatt said that Knight “accidentally” ran over the two men, killing one of them, as he (Knight) was trying to escape a “vicious attack.”

Authorities have released the name of the man who died as Terry Carter (age 55) and the injured man is reported to be Mr. Cle “Bone” Sloan (age 51). Details, which are not confirmed, are that after visiting the movie location (Straight Outta Compton), which is a film about the rise of N.W.A., a rap group, the men argued. Sheriff deputies who were there providing security, told Knight to leave. The men got together again in a nearby parking lot and the dispute resumed.  Reportedly punches were exchanged through a window of his pickup truck. Then, as the unconfirmed reports continue, Knight drove his pickup truck at the men, killing one and injuring the other.

Attorney Blatt disputes this report of the events. According to Blatt a group of people tried to kill Knight and were in the process of pulling him out of his pick-up truck when he regained control of his vehicle and ran over the two men while trying to escape the attack. The incident was originally handled by authorities as a hit and run case and Knight was issued bail of $2.05 million dollars. However, once his status as being out on bond for a robbery (involving a camera he took from a photographer who was taking photos of him last November in Los Angeles) was reviewed, and the charges re-filed as murder and attempted murder, authorities moved in court to have Knight remanded into custody without the opportunity to be released on bond. The reasons cited by the prosecutor’s office were his status as a convicted felon, the fact that the new charges arose while he was on bond for an unrelated felony charge, his ability to flee the jurisdiction and that he may try to tamper with evidence or witnesses in an effort to obstruct the government’s case against him.

For fifty years, the policy of the United States was to permit Cubans convicted of deportable crimes to remain in the United States. This policy is coming under review and may be reversed. The United States has not deported Cuban nationals from the United States and the Cuban government has refused to accept their citizens who would be subjected to removal.

Alejandro Mayuorkas, the deputy secretary of the United States Department of Homeland Security has publicly stated that the issue will be discussed with Cuban authorities in the context of negotiations to normalize relations between the United States and Cuba. Of the approximately 34,500 Cubans who have been convicted of crimes which subject them to deportation, the overwhelming majority have not filed legal papers to stop their removal; assuming that their special status will not be modified.

U.S. / Cuban flagsImmigration lawyers throughout the United States, and particularly in Miami, where the largest number of Cubans subject to deportation reside, have been swamped with calls for help. Because those who have been issued deportation orders in past years have not elected to fight those removal orders in Federal Court they may have lost the right to object to their removal. As a result of their confused legal status: ordered to be removed but not removable due to U.S. policy, those individuals ordered to be removed may face removal in the coming year or two.

The United States Supreme Court, in rulings in 2001 and 2005, prohibited the detention of those immigrants who cannot be deported to Cuba pursuant to the policies of the U.S. Federal authorities. The rulings required that they be released into the community after serving their prison terms in the United States and were, and are, required to report in person or by mail to Immigration and Customs Enforcement agents (ICE). Knowing and monitoring their locations permits the ICE agents to find those individuals and begin removal if and when Cuban and United States negotiators resolve the question of removal.

As of the date of publication of this report (February 2015), ICE has not changed the policy as to the removal of Cubans residing in the United States who have been ordered to be deported. With the exception of 2,746 Cubans who were accepted by Cuba in 1984, there have been no Cubans removed to or accepted by Cuba. Of those 2,746 Cubans on the list, almost all of them arrived in the United States in 1980 on the legendary Mariel boatlift operation. The Mariel Boatlift of 1980 is reported to have brought 125,000 Cuban nationals in private boats to Miami, Florida. Many nations, other than Cuba, make it difficult or impossible to remove their citizens who are in the United States and commit deportable offenses. Among those nations listed by U.S. officials as “recalcitrant nations” are Iran, Vietnam, Cambodia, India, China and several other Caribbean nations.

The Sun Sentinel, a popular newspaper in Broward County and Miami (Florida) recently inflamed passions on this issue by publishing a series of reports about Cubans who have been convicted of Medicare fraud, rape, armed robbery, narcotics violations and violent crimes and who remain in the U.S. and flaunt their special status as non-removable aliens. This has brought about an increase in the tensions between Cubans who have the right to remain in the United States and citizens of other nations who are routinely and regularly deported from the United States to their country of origin.

This past Monday, the U.S. Supreme Court ruled, in an 8-1 decision, that now it’s possible for a police officer to stop your car based on a mistaken understanding of the law without violating the Fourth Amendment.  Now watered down by Heien v. North Carolina, the Fourth Amendment to the U.S. Constitution requires police to meet a reasonableness standard, before a search can be made of your person or property. The Fourth Amendment prohibits unreasonable searches and seizures. Until this case, the police could not search your person or your car if they are mistaken on the law. Now the Supreme Court has said that a mistake of law by the police can make an otherwise unconstitutional search a lawful search.

4th Amendment

North Carolina law only requires vehicles to have one working stop lamp. Until this Supreme Court decision, a police stop and search based on a single non-working tail-lamp was prohibited. No more. Justice Roberts, writing for the U.S. Supreme Court wrote: In this case, an officer stopped a vehicle because one of its two brake lights was out, but a court later determined that a single working brake light was all the law required. The question presented is whether such a mistake of law can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment. We hold that it can.” 

This extends the “mistake of fact” exemption. For a real life example of an excusable mistake of fact that made an otherwise unlawful police stop lawful consider this: Assume you are driving in a High Occupancy Lane (HOV), and in your car are two (required) passengers, but they are sleeping out-of-view in the backseat and unseen.  In this situation, an officer may make a lawful stop. The mistake in fact was that the officer, not seeing the two rear passengers asleep on their sides, believed that your car was in the HOV lane without the required passengers. The stop is lawful, the mistake in fact was reasonable. Now, under the recent U.S. Supreme Court decision, if the officer makes a reasonable mistake of law the stop can be lawful.

Now, if a judge can be convinced that there was a reasonable mistake of law by an officer, the stop and search are lawful.  Here are the facts of Heien v. North Carolina and you decide: Early in the morning hours of April 29, 2009, an officer (sheriff) in North Carolina saw a car driving north on Interstate 77. Testifying that he (the sheriff) believed the driver was “stiff and nervous,” followed him in his marked patrol car.  A few miles passed and the driver stepped on his brake.  The sheriff saw only one working brake lamp and pulled the car over.  The stop uncovered cocaine in a plastic bag in the rear of the car. The driver was arrested and charged with trafficking in cocaine. There was no ticket for driving with a broken stop lamp because it is lawful to operate a car in North Carolina with such a defect.  The North Carolina Supreme Court upon hearing the facts determined that the stop was without legal cause and that there was no violation of law so there was no legal reason to stop the car.

Here is the tension in the law now: The U.S. Supreme Court does not permit citizens to escape criminal liability even if their mistake of law was reasonable. Lack of knowledge of the law is not an excuse to violate the law.  Now, however, that rule does not apply to the police.  The new rule of law permits the police to make reasonable mistakes of law when making a search and for the mistake to be overlooked.

A former Boca Raton, Florida resident, Ms. Annette Bongiorno, age 66, was sentenced in Federal Criminal Court in New York. U.S. District Court. Judge Laura Taylor Swain sentenced Bongiorno to six years in Federal prison saying Ms. Bongiorno’s decision to follow Bernard Madoff’s instructions to perpetrate one of the largest frauds in U.S. history was inexcusable. The Judge said the fraud went forward and was advanced “right in front of her,” while Annette Bongiorno did nothing to stop or reveal the fraud.  Instead she helped, year after year, to continue one of the most tragic frauds in history.

Madoff - Annette Bongiorno

The losses are estimated at twenty billion dollars, with estimated forfeitures of almost 155.2 billion dollars. Forfeitures are monies that investors had withdrawn over the twenty-plus years of investing in Bernard Madoff’s investment product, and are forced to return to the Bankruptcy Court. Most investors drew out some of the earnings to live on, and left their original principal investment remain with Madoff’s private investment plan.   The reported yield on investment was not, by most standards, either over high or excessive under then-current market conditions so as not to draw suspicion. What made the Madoff investment product so attractive was the fact that year after year, without exception, his return on investment was constant, regular and unchanging.

Ms. Borngiorno became a millionaire as Bernard Madoff’s assistant, living in luxurious homes in Boca Raton, Florida, and Manhassett, an upscale town on Long Island, New York. U.S. Federal prosecutors sought a twenty-year sentence and were disappointed by Judge Swain’s six-year prison term.   Annette Bongiorno was convicted in New York Federal District Court, criminal division, in March of 2014. The sentencing was set for December 2014.

At the sentencing Federal Judge Swain said of Ms. Bongiorno, among other things, that Ms. Bongiorno was “not fundamentally corrupt” but was rather dazzled by the tone and demeanor of Bernard Madoff. The Judge went on to say that she had “borderline competence” to do the complex financial work that she performed in the Madoff operation. The Judge said Ms. Bongiorno should have realized, as far back as 1992, that Madoff’s operation was a fraud but that she lacked the moral fiber to step forward. The Judge went on to say she was “a knowing and willing participant who made a choice to participate.”

Refuting the Judge’s statement, Ms. Bongiorno insisted that she was innocent of actual knowledge when she said in open court “I did not know what was happening, I didn’t mean to hurt you.” What surprised most attorneys familiar with Federal fraud cases and sentencing is, despite Ms. Bongiorno’s protestations of innocence, the Judge sentenced her to a light sentence of only six years in Federal prison. Ms. Bongiorno, almost challenging the Judge’s decision to be lenient by an under guidelines variance said in open court “how very sorry I am by all the sorrow and loss caused by Madoff and by extension, by me.” These, her protestations of innocence, were an attempt to distance herself from the fraud.  Judge Swain, seemingly ignoring Ms. Bongiorno’s statements, shocked prosecutors by the light sentence of six years in Federal detention. To support Judge Swain’s sentence, the Judge remarked the issues of poor health. Ms. Bongionrno’s slight build (five feet tall) and the Judge’s statement that Ms. Bongiorno would not do well in prison, were made on the record to support the Judge’s variance in sentencing Ms. Bongiorno below the Sentencing Guidelines.

Visit the Wall Street Journal’s section for more articles on the Madoff Ponzi Scheme.

The arrest is where it begins. A Federal criminal arrest can often be an almost civil event between professional U.S. agents and the target. Once arrested you are brought before a Magistrate for arraignment. At arraignment the matter of reading the indictment, determination of counsel, and conditions of pre-trial release, or pre-trial incarceration, are determined.

What comes next is the most difficult and most important stage: it is called Pre-Trial Discovery. In Federal criminal courts in Miami and Fort Lauderdale all cases, not just some, or a few, but all Federal criminal cases are won and lost in Discovery.  Older lawyers learned Motion Practice, and it is still true that in the technical skills of motion practice a case lives, or dies. There is great truth in the ancient lawyers’ adage that good lawyers have good answers, great lawyers have good questions.  What goes on in Federal criminal courtrooms in Miami and all over Florida, is a struggle to force the U.S. Attorney to reveal evidence that will exonerate.

Over fifty years ago the U.S. Supreme Court wrote the groundbreaking case of Brady v. Maryland. In the Brady decision, the U.S. Supreme Court made the finding that the government’s failure to disclose favorable evidence violates the constitution.  But what the Court gives, it also takes away….when the Court added the inscrutable caveat that the rule only applies to information that is “material.”  Certainly no one knows the unknown, but forcing a prosecutor to provide exonerative evidence is what truly great criminal trial lawyers do best.

This is sadly truest, and most lacking, in Federal criminal courts where prosecutors have an unwritten code of total war to secure a conviction. Most criminal trial lawyers in Federal criminal court will agree that Brady rules are more in the breach then in the observance.  A recent study by the National Association of Criminal Defense Lawyers found that in 620 cases under study Federal prosecutors failed to disclose favorable information in 145 of the 620 cases. It is also widely held by criminal defense lawyers that judges are no friend to criminal defense attorneys in federal court.  The NACDL study concluded that in only 14 percent of the cases judges granted the defendant’s motion. Finding a way to use discovery rules to gain advantage is best done not in anger, but with patience.

Here is an illustration of how it is done: Witnesses, who were known to Federal investigators and determined as not useful to the prosecution, are not interviewed.  In discovery practice, all Federal districts require that field notes of investigators be revealed to defendants Demanding interview lists (not notes) is the way to get the names of witnesses who were not interviewed and do not appear in the investigator’s notes. Resistance by prosecutors is successfully skirted by demanding investigation names of both those interviewed and those not interviewed.

Federal criminal court judges, in my opinion, often thwart defense investigations rather than helping them.  You can encourage a Federal judge’s unwilling assistance by couching your demands in such a way as to suggest failure to grant the motion may well be an ethical violation.  Again, asking good questions is better than having good answers.  When you file discovery requests, such that they place a judge in an area that is between ethically right and wrong, you can overcome a judge’s predilection to expediency in moving his criminal docket. Start with having no fear. Do not fear a judge nor prosecutor. Fear cripples; but knowledge and skill can enlist a Federal criminal judge to assist in your discovery rather than block it.

Several women have accused entertainer Bill Cosby of rape.  The  victims who have come forward with rape charges allege criminal  sex acts that were in past years.   Florida’s statutes of limitations  rules set a framework for what acts are time-barred and those that are not.   What rules of law would apply if Bill Cosby were charged and arrested for sexual battery in Florida?


Sexual offense categories and sentences,  vary with the ages of those involved.   Florida’s sexual battery crimes have different levels of culpability, which depend not only on the age of the victim, but the age of the perpetrator. Florida enhances penalties for sexual batteries by those in positions of trust such as parents and teachers.  In Bill Cosby’s situation the lapse of time between the date of the act and the involvement of prosecutorial agencies would quite likely bar a prosecution in Florida.  Sexual Battery is a subject in the news because of its social and political implications: none of this is missed in the Bill  Cosby matter.  What has been reported as a delay in bringing the allegations forward is also being reported as the very human delay between a violation and the victimization of an individual and a plea for help.

At the time of the posting of this blog, none of the accusers allege that the sexual batteries (rapes) were committed in Florida. Each state has its own set of laws concerning statute of limitations and rape. Depending on which state seeks to arrest and prosecute Bill Cosby, their individual state laws would govern the prosecution. Statues of limitations do not “repose” or end prosecutions when the accused fled the jurisdiction of the courts and hid from detection. The statute of limitations would also be tolled if the facts of the case could not have been discovered by the State due to efforts by the perpetrator to hide or obscure the detection of relevant facts.

Bill Cosby’s accusers have received great and widespread public support in their attempts to bring Bill Cosby before a criminal court for prosecution. Depending on the individual facts of each case and relevant State laws, prosecutors will explore and decide on where and if to bring criminal charges of rape against Bill Cosby. Since some of the accusations go back a significant numbers of years, some of them are from acts alleged to have occurred twenty-five years or more in the past, an issue may be whether prosecutors can proceed on the current laws, or must prosecute under the laws as they existed at the time of the alleged sex acts. This gets into the area of constitutional laws as some modifications that have been made by legislatures to sex crimes involve constitutional rights and other modifications have no constitutional implications.  It will be for local prosecutors in the State’s in which the allegations arose to decide to bring criminal charges.

A recent New York Times article highlights 1,000 cases in which entrapment  may see new life in courtrooms and legislatures throughout the United States.  Entrapment laws go back to the 1930’s when the U.S. Supreme Court first put constitutional rights in play to restrain what the Justices called “outrageous government conduct.”  Entrapment is when someone neither inclined nor seeking to commit a crime, is presented the opportunity by a government agent and is induced or persuaded into the enterprise with no prior inclination.

Now that you have the bones of the law on entrapment let’s look in on what your Government is doing.  Here are the facts…you decide if it’s entrapment or not:

Three hardened criminal types, all with extensive criminal histories involving guns, narcotics and violence, are sitting around in their crib, talking dirty and doing the bad boy thang.  An FBI agent posing as a drug courier goes to them with a proposal….. He tells this den of evil-doers that his main supplier has a big load of cocaine coming in, gives them the location.  He promises it is at least a half million dollars in street value cocaine. He tells them there may be some guns, but not enough that these three can’t handle. The FBI agent tells them its easy pickings and he’ll help. Our gang starts to get their arsenal together, buys some plastic garbage bags and stays: the bags are for the cocaine and the stays are to tie the hands of the drug lord’s retinue.   Then, with dreams of easy money dancing in their heads and never having left their rooms, a SWAT team breaks into their lair and arrests them on charges of conspiracy to distribute more than five kilograms of cocaine, armed trafficking and conspiracy. Those charges get them into ten-year minimum incarceration guidelines ranges and maximum life in prison for armed trafficking. What’s your decision here? Are the cases solid, can you convict, or will some judge throw the case out as entrapment?

Let’s go to the formula…

Were they inclined to commit the armed trafficking crime, or just waiting around for an opportunity to continue their bad boy ways? Were they seeking or looking for the opportunity or did a government agent bring it to them? Were there inducements made by the FBI agent to entice them to commit the crime? Does the government action offend the community’s sense of fair play and fair dealing? Does this rise to outrageous governmental conduct or is it solid law enforcement? If the three were not career criminals but three bored college students would it make any difference to you? Should it?

A Los Angeles judge dismissed two defendants in the above fact scenario and held one for trial. A Second Judge in Los Angeles dismissed similar charges. Then the government took the dismissals to a court of appeal and argued that the guns were real, the defendant’s criminal histories were real and the high stakes cocaine and money allurements were merely there to get their attention, not create a new crime. The agents who approached our little gang knew nothing about them other than they were men with extensive criminal histories living in poor neighborhoods. Is this something that “steers too close to tyranny” (as the court that dismissed the case wrote) or acceptable law enforcement methods of clearing neighborhoods of bad actors? Everyone gets to vote, but the only vote that counts is the guy in the black robe.