Federal Criminal Cases v. Florida Criminal Cases

How are Federal Criminal Cases prosecuted Differently that Criminal Cases in the Florida State Courts?

Federal criminal cases are very different from criminal cases in Florida state courts.  Below are examples of some of the differences.

The Manner of Investigation

FBI Agents remove evidence from an office after executing a search warrant.

Federal criminal investigations are generally proactive, while state criminal investigations are generally reactive.

Federal law enforcement agencies generally investigate a matter for some time before they make an arrest.  In fact, by the time a person realizes that they are under federal investigation, federal law enforcement agents may have been investigating them for many months.  In contrast, Florida law enforcement officers generally begin their investigation at or near the time of the arrest.

Federal Prosecutors Can Pick Their Cases

Sometimes, the federal criminal courts and the state criminal courts both have jurisdiction over a case.  In these situations federal prosecutors have a choice – they can take the case themselves, or they can leave it to the state prosecutors.  The federal prosecutor’s decision on whether or not to take the case will be based on the priorities of their U.S. Attorney’s Office, but they generally pick cases that they believe are going to be easy to prove.  State prosecutors, on the other hand, don’t have this luxury.  If a crime takes place in their jurisdiction and the federal prosecutors don’t take it, they have to deal with it.

Federal Grand Juries v. State Grand Juries

In Federal Court, the 5thAmendment to the U.S. Constitution requires that persons accused of a felony (a crime that can be punished by more than a year in prison) must be charged by a Federal Grand Jury Indictment unless the person voluntarily waives that right.  In Florida Courts, the Florida Constitution requires only that those persons accused of a capital crime (a crime punishable by death) must be charged by a Grand Jury Indictment.

In both the Federal and Florida systems, when the charges don’t require an indictment, the prosecutor can charge the case in a document called an information.

The Federal Government Has Extensive Resources

Cases in federal court are investigated by agencies such as the FBI, DEA, Homeland Security, and Secret Service.  These agencies, along with the United States Department of Justice, have large budgets, and essentially limitless resources with which to investigate alleged criminal activity.  State agencies, on the other hand, generally have fewer resources at the disposal to investigate alleged criminal activity.

Are The Rules of Criminal Procedure In Federal Court Different than the Rules in Florida State Courts?

Yes, the rules of criminal procedure in federal court are different from the rules of criminal procedure in Florida State Courts.

For example, in Florida courts, the rules of criminal procedure allow for a defense attorney to depose (interview under oath) all of the witnesses that the state prosecutor intends to call at trial before the trial.  In the federal system, however, the defense attorney generally is not allowed to depose witnesses before trial and often doesn’t even know who the witnesses will be until the first day of trial.

Is Federal Criminal Sentencing Law Different Than Florida Criminal Sentencing Law?

The rules for federal criminal sentencing are completely different than the rules for Florida criminal sentencing.

Federal District Court Judges must take into consideration The United States Sentencing Guidelines when sentencing a defendant.

Federal judges, when deciding what sentence to impose, will consider a variety of factors, including the United States Sentencing Guidelines.  The United States Sentencing Guidelines provide a suggested sentencing range of imprisonment, house arrest, or probation for the judge to impose.  The length of the sentence the guidelines suggest is based on the severity of the offense (for example, in a drug case the weight of the drug), the defendant’s role in the offense, and the defendant’s criminal history.  Federal judges take other factors into account, including the nature and circumstances of the offense, the history, and characteristics of the defendant, and the need to avoid unwarranted sentencing disparities.  As long as the charged offense does not have a minimum mandatory sentence, federal judges have a tremendous amount of discretion in their sentencing decisions.

In contrast, as stated by the Florida Legislature, the primary purpose of sentencing in Florida state courts is to punish the offender.

The Florida Statutes set out a system for sentencing in the Florida Courts.

When deciding what sentence to impose, Florida circuit court judges use a system called the Florida Criminal Punishment Code.  That system assigns a certain number of points to the current charges, as well as additional points for any prior criminal history.  Once a certain number of points are reached, the general rule is that the judge must sentence the offender to Florida state prison – the more points, the more prison time.  Florida law does allow Florida Judges to sentence a defendant below the prison sentence required by the Florida Criminal Punishment Codein some circumstances.  For example, if the judge finds that a defendant requires specialized treatment for a mental disorder unrelated to substance abuse, or that the need for payment of restitution to the victim outweighs the need for a prison sentence, or that the victim was an initiator, willing participant, aggressor, or provoker of the incident, then the judge can impose a probationary sentence rather than send the defendant to prison.


New and Improved “Get Smart” Federal Government Surveillance

In the 1960’s comedy television series “Get Smart”, Agent 13 was a Government agent whose job was to perform surveillance upon an evil international organization known as “KAOS.”  To spy on  “KAOS”, Agent 13 would hide inside uncomfortable places, such as a cigarette machine, mailbox, locker, washing machine, trashcan, toilet, tree, or fire hydrant.

Get Smart’s Agent 13 disguises himself as potted plant.

Nowadays with advances in technology Government agents don’t have to hide themselves in unsuspecting places to perform surveillance.   An example of the Government’s current surveillance tactics can be seen in a recent case from the federal district court in San Francisco.

In U.S.A. v. Giraudo, five Defendants were accused of conspiring to restrain competition by rigging bids at public real estate auctions.

To understand this case, you need to know that when a person or business defaults on a mortgage, the property in question may be sold at a public auction.  The proceeds from the auction are used to pay off the bank that holds the mortgage, with the remaining proceeds, if any, paid to the person or business that defaulted on the loan.

However, in this case, the Government alleged that before the auctions, the five Defedants would pick the winning bidder for the property amongst themselves, and then the winning bidder would pay the losing bidders off for keeping their bids low.  This practice is illegal because it lowers the sale price of the property, which essentially steals money from the bank holding the mortgage, as well as the person or business being foreclosed upon.

During the Government’s investigation, FBI agents planted listening devices outside the entrance of a county courthouse where the auctions took place.    The FBI did not get a warrant (permission) from a judge to plant the listening devices – they just did it on their own.

The listening devices were hidden in a metal sprinkler box, a planter, and an automobile.  The FBI turned these devices on at least 31 times and captured over 200 hours of conversations.  The devices were so sensitive that they were able to capture not only the voices of people standing in front of the courthouse talking on their cellphones, but also the voices of the persons on the other side of the line.  The listening devices did in fact capture incriminating conversations amongst the Defendants, which supported the Government’s case.

The San Mateo County Courthouse in Redwood City, California

The Defendants’ attorneys filed motions to suppress the recordings, claiming that the FBI violated the Fourth Amendment of the United States Constitution when it failed to get a warrant before it eavesdropped on their conversations.

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The United States Supreme Court has held that the Fourth Amendment not only protects places, but also a person’s communications.  However, the Fourth Amendment does not protect every communication a person makes.  In the San Francisco case, Federal District Court Judge Charles Breyer, whose brother is Supreme Court Judge Stephen Breyer, noted that the Fourth Amendment would protect the conversations that took place in front of the courthouse only if:

  1. The defendants had a “subjective expectation of privacy” in their conversations in front of the courthouse.In other words, the defendants had to have thought that their conversations were private.
  2. The defendants’ expectation that their conversations were private was “objectively reasonable.” In other words, the defendants’ beliefs that their conversations were private had to have been reasonable.

The Government’s lawyers argued that the FBI did not need to get a warrant from a judge because the recorded conversations took place in front of the courthouse – which is a public place.  Therefore, the Government argued that the defendants did not have a reasonable expectation of privacy and the Fourth Amendment does not apply.

The Defendants’ attorneys disagreed.  They argued that people often have a reasonable expectation of privacy in public places.   For example, people in public places often move off the side away from other people to talk in private, or they may lower their voices so other people won’t hear them.

After reviewing the facts of the case, Judge Breyer analyzed whether the Defendants had a “subjective expectation of privacy” and if so, whether or not that expectation was “objectively reasonable.”

Senior United States District Court Judge Charles R. Breyer

First,  Judge Breyer noted that the video and audio recordings showed that one of the defendants would keep a close eye on the people near him, speak in a lower voice or stop talking when strangers approached, and generally do everything possible to make sure nobody else heard his conversations. Therefore, Judge Breyer felt that the defendants had a subjective expectation of privacy in their conversations. In other words, the defendants thought what they were saying was private.

Second, to determine whether or not the defendants’ subjective expectations of privacy were objectively reasonable,  Judge Breyer considered a variety of factors, including: the location of the conversations; whether the conversations could be overheard with the naked ear; whether the conversations took place out in the open; whether the conversations involved business or private matters; the proximity of other individuals to overhear the conversations; the affirmative actions taken by the speakers to shield their privacy; the need for technological enhancements to hear the communications.  After considering all these factors,  Judge Breyer found that it was reasonable for the Defendants to have believed that their conversations were indeed private.

Having determined that the Defendants had a subjective expectation of privacy in their conversations in front of the courthouse and that that expectation was objectively reasonable,  Judge Breyer ruled that the FBI had violated the Fourth Amendment’s prohibition against unreasonable searches when it recorded the Defendants’ conversations without a warrant.  Therefore,  Judge Breyer suppressed the recordings.  The effect of Judge Breyer’s order was that the Government could not use the recordings as evidence at the Defendants’ trial.

However, it appears that even without these recordings, the Government had enough evidence to convict the Defendants, and all 5 Defendants ended up pleading guilty.  Their sentences ranged from probation, to 15 months of incarceration.

If you would like to learn more about what happens when police use investigative methods that violate the U.S. Constitution, click here: https://www.thehardylawfirm.com/unconstitutional-police-conduct-tampa-florida/