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The Pitfalls of Federal Plea Agreements
The Criminal Justice Section of the American Bar Association (ABA) in 2019 formed The Plea Bargain Task Force (Task Force) “to address persistent criticisms of the plea bargain system in the United States. Plea bargaining has become the primary way to resolve criminal cases. Indeed, some jurisdictions have not had a criminal trial in many years, resolving cases through negotiated resolutions.”
Therefore, the ABA decided that a “critical examination” of plea bargaining was both “necessary and important,” particularly since 98 percent of all federal criminal cases are resolved through plea agreements. Some of the findings of the Task Force released this past February are stunning:
- The benefits of plea bargaining (and there are some) are too often utilized as a means to “mitigate the harshness of the modern criminal justice system.”
- There is substantial evidence that defendants—including innocent defendants—are sometimes “coerced into taking pleas and surrendering their rights to trial.”
- Prosecutors exploit defendants’ fear of mandatory sentencing if convicted by trial to induce defendants to plead guilty in cases where they “otherwise would prefer to exercise their constitutional right to have the case decided by a jury.”
- Mandatory collateral consequences, such as the threat of deportation, force defendants to accept guilty pleas rather than face trial.
- The integrity of the plea bargaining system is now negatively impacted by the sheer volume of the system.
- Police and government misconduct often goes unchecked because defendants plead guilty before pretrial discovery motions can uncover their wrongdoing.
- Defense attorneys are less likely to properly investigate cases because they know their clients will probably take a plea deal.
- The plea bargaining system incentivizes everyone to expeditiously resolve cases rather than justly decide them.
- The plea bargaining system is tainted with systemic racism, producing a laundry list of racial disparities.
The ABA’s House of Delegates, at its August 2023 convention, formally adopted the Fourteen Principles for change spelled out in the Task Force’s February report.
The ABA’s 2023 Plea Bargain Task Force Report Principles
Principle 1: A vibrant and active docket of criminal trials and pre- and post-trial litigation is essential to promote transparency, accountability, justice, and legitimacy in the criminal justice system.
Principle 2: Guilty pleas should not result from the use of impermissibly coercive incentives or incentives that overbear the will of the defendant.
Principle 3: In general, while some difference between the sentence offered prior to trial and the sentence received after trial is permissible, a substantial difference undermines the integrity of the criminal system and reflects a penalty for exercising one’s right to trial. This differential, often referred to as the trial penalty, should be eliminated.
Principle 4: Charges should not be selected or amended with the purpose of creating a sentencing differential, sentencing enhancement, punishment or collateral consequence to induce a defendant to plead guilty or to punish defendants for exercising their rights, including the right to trial.
Principle 5: The criminal justice system should recognize that plea bargaining induces defendants to plead guilty for various reasons, some of which have little or nothing to do with factual and legal guilt. In the current system, innocent people sometimes plead guilty to crimes they did not commit.
Principle 6: A defendant should have a right to qualified counsel in any criminal adjudication before the defendant enters a guilty plea. Counsel should be afforded a meaningful opportunity to satisfy their duty to investigate the case without risk of penalty to their client.
Principle 7: There should be robust and transparent procedures at the plea phase to ensure that the defendant’s plea is knowing and voluntary, free from impermissible coercion, and that the defendant understands the consequences of their decision to plead guilty.
Principle 8: The use of bail or pretrial detention to induce guilty pleas should be eliminated.
Principle 9: Defendants should receive all available discovery, including exculpatory materials, prior to entry of a guilty plea, and should have sufficient time to review such discovery before being required to accept or reject a plea offer.
Principle 10: Although guilty pleas necessarily involve the waiver of certain trial rights, there are rights that defendants should never be required to waive in a plea agreement.
Principle 11: An adequate understanding of the collateral consequences that may flow from a guilty plea is necessary to ensure the guilty plea is knowing and voluntary.
Principle 12: Law students, lawyers, and judges should receive training on the use and practice of plea bargaining consistent with the findings and recommendations of the 2023 ABA Criminal Justice Section Plea Bargain Task Force Report.
Principle 13: Court systems, sentencing commissions, and other criminal justice stakeholders, including prosecutor offices and public defenders, should collect data about the plea process and each individual plea, including the history of plea offers in a case. Data collection should be used to assess and monitor racial and other biases in the plea process.
Principle 14: At every stage of the criminal process, there should be robust oversight by all actors in the criminal system to monitor the plea process for accuracy and integrity, to ensure the system operates consistent with the Principles in this Report, and to promote transparency, accountability, justice, and legitimacy in the criminal system.
On August 17, 2023, the Fifth Circuit Court of Appeals handed down a decision as the ABA was adopting these Fourteen Principles. United States v. Cuff illustrates the legal pitfalls of the plea bargaining system and the government misconduct frequently associated with the system.
In 2011, while residing in Louisiana, Robert Cuff, became a member of an online bulletin board that trafficked in child pornography. As a member, he posted 43 files to the board, most depicting adults engaged in sexual activity with children. The post elevated him to a VIP status among the other members.
Cuff was eventually arrested by federal law enforcement officials and confined in the Bossier Parish Jail. A federal grand jury, sitting in the Western District of Louisiana in Shreveport, formally indicted him for three counts of distribution of child pornography.
Following Cuff’s arrest, federal law enforcement officials searched his home in El Paso, Texas, where they discovered videos showing him engaged in sexual activity with his girlfriend’s five-year-old daughter. Those videos subjected him to a federal grand jury indictment in the Western District of Texas.
Cuff and his attorney, both aware of the potential legal liability in Texas, began negotiating a plea agreement with federal prosecutors in Louisiana. The defense attorney specifically asked the Louisiana federal prosecutor if Cuff faced any charges in Texas for the video involving the girlfriend’s daughter. The prosecutor deferred, referring defense counsel to the federal prosecutor in Texas.
The Texas federal prosecutor told defense counsel that the victim’s family was reluctant to have the child testify about the abuse. He said his office would not prosecute Cuff but would turn the videos over to the Louisiana prosecutor’s office to be used in his sentencing there.
Assured there would be no legal liability in Texas, defense counsel recommended that Cuff accept the plea deal being offered in Louisiana: the government would drop two of the original charges and accept a plea to one count of engaging in a child exploitation enterprise.
On December 1, 2011, Cuff agreed to the Louisiana plea agreement, which was accepted by the court.
The Texas prosecutor, on December 14, 2011, secured an indictment of Cuff for sexually abusing the five-year-old child. In an egregious act of professional, ethical misconduct, the prosecutor moved the Texas court to seal the indictment, claiming “the disclosure of the indictment would seriously jeopardize the ability of law enforcement officers to locate the Defendant and apprehend him without incident.”
The Texas prosecutor knew this was a deliberate lie. He had information from both Cuff’s defense counsel and Louisiana prosecutors that Cuff was sitting in the Bossier Parish Jail (and had been since July 2011) awaiting sentencing on the negotiated Louisiana charge.
The Texas court granted the motion and issued an Order to Seal. The order stipulated that the indictment would be made public upon Cuff’s arrest, which had already occurred five months earlier.
On January 9, 2012, the U.S. Marshals Service lodged a “detainer” against Cuff with the Bossier Parish Jail. A detainer is not an “arrest.” It is simply a notice that jail officials hold an inmate until law enforcement officials in another jurisdiction can pick him up.
Cuff and his defense were not aware of the indictment, the order to seal the indictment, or the lodged detainer.
In July 2012, Cuff and his defense counsel appeared in the Louisiana federal court for sentencing. A Presentence Investigation Report (PSR), influenced by the videos of Cuff engaging in sexual activity with the five-year-old, recommended a sentence enhancement that increased his sentencing range to life imprisonment. Cuff immediately moved to withdraw his guilty plea on the “grounds that an anti-malarial drug he was prescribed while serving in the U.S. Navy had driven him insane at the time he pled guilty.”
The court denied the motion, adopted the PSR’s recommended enhancement, and sentenced Cuff to life imprisonment.
In August 2012, Cuff was given notice of the Texas federal indictment.
On appeal to the fifth circuit, Cuff argued that this secret indictment violated his Louisiana plea agreement.
The Fifth Circuit has remanded the case back to the district court to sort out the factual details and determine if those facts sufficiently prejudiced Cuff to permit a withdrawal of his guilty plea.
We would add that the Texas Bar Association should open an overdue inquiry into the actions of the federal prosecutor in El Paso to determine if he knowingly submitted false legal pleadings to the court.
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John T. Floyd Law Firm
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I’ve never been one to write reviews but this time I couldn’t pass up the opportunity to say something. I had some serious legal questions I needed answers to concerning Texas laws. … More Being I’m from another state, I found and reached out to Attorney John Floyd for the answers. Mr Floyd listened to to my requests and told me what he need from me and went out of his way to get me the answers. Very polite, straightforward and professional, I can’t thank him enough for all he’s done. Whatever your legal case may be, I wouldn’t hesitate to recommend Mr Floyd.
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Mr. John was very helpful and truly was the reason why my case was dismissed. Thank you so much Mr. John I truly recommend everyone in need to work with him.
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Highly recommend John T Floyd law firm, great response time and demeanor.I was researching an on-going criminal case, when I found an informative article written by John Floyd (about … More the perils of expert testimony). I called his office, and was very pleased to receive a timely call back. Not only was Mr. Floyd candid and helpful, but he had the kindest demeanor of any attorney that I've dealt with. I am so glad to have found this firm.
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Mr John is a great human being and a very knowledgeable attorney. He has always called me back promptly,advised me very clearly and never rushed our conversation. i was wrongfully accused … More and Mr John had my case DISMISSED!! on the day of trial after fighting for me for two years. I am very thankful to the John T. Floyd Law Firm. You will not go wrong with John. Mr John you deserve way more then 5 stars.Thank youShaikh.
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John Floyd Law Firm is highly recommended for your legal needs. He and his staff are highly professional in every aspect. Easy and comfortable feeling talking with him, and he understands … More your needs and explains your legal advice in a way you can understand. Enough just cant be said. Thank You Sir.Positive
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What I liked the most was that he actually returned my phone after leaving a message unlike pretty much everyone else I called prior. He listened and answered my question with the best … More advice that would benefit me the most. I was actually lost from moving to Texas from a different state we’re laws vary and he pointed me toward the right direction to get a understanding of if I need to do business with him now or after I contact a lawyer in my home state.
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John is honestly the best! The whole team is. He answered me in a timely manner and helped me when my friend was going through a situation in Houston, Texas as an inmate. He was so … More thorough, honest, and without charging me sent me so much information because I was out of the loop. He never once tried to take you for your money, he did all that he could to. help me and I can't thank him enough.
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I have used John on two occasions and found him to have full knowledge of Texas law, diligent, creative in plan, and aggressive in defense. He is the best criminal defense attorney … More in the State of Texas. No reason to look elsewhere.
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Attorney Floyd replied very timely to my inquiry and he provided practical advice. I will not hesitate to contact him in the future if I need additional legal counsel.
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Highly recommend, down to earth lawyer. Talked to me about my legal issues without being super money hungry and genuinely wanted to help me with my legal problems. 5 stars ⭐️.
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Very knowledgeable and professional. I called and left a message Friday morning and before end of business that day I received a call back.Positive
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Excellent service and a lawyer that doesn't lie. He does what he says. JW recommends him.
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One of the best services Ive used in awhile. Thank you for all the help and answers. You got my life back. Thank youPositive
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Im impressed. This guy was polite and professional and most important...he listened.
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Good experience and very good lawyer
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It was a pleasure speaking with John. He is knowledgeable and has a true desire to help the people of society. I turned to him for some guidance of a long-standing issue. He never … More rushed our conversation and went out of his way to look into the details to provide the right answer as well as assist me anyway he could. Thank you for our conversations and I wish your and your firm the best. If you need a lawyer, John Floyd is your guy!
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John represented me in court for roughly 2 years. I won't (and shouldn't) get into any serious details, but let me tell you that I couldn't have chosen anyone better. … More Seriously.Every appearance in court I felt very comfortable. The judge and DA's had a high regard for his reputation. There is a time I recall where simply his presence greatly impacted the court's interpretation of my case and persons. We were in front of the stand and the judge could not stop talking about John's prestige and past accomplishments and how that took in relation to my case. I kept silent in front of the judge, but I observed then that John's popularity and reputation within the court had already given me a better looking rapport with the judge. Let me tell you, I never had more confidence then, knowing that the judge held him in such high regard.This is not to mention how personable John is. I'll be honest that during the stress of court, sharing a laugh with your lawyer helps a lot. This may sound a lot, but I really appreciated the relationship we had then. This is also not to mention that he was able to deal very well with any DA that rotated over the years. Seriously, John was great, prompt with information and very hands on with my case. I had great peace those 2 years until everything wrapped up.If you're looking for a lawyer, I highly, HIGHLY recommend the John T. Floyd Law Firm. He IS nationally renowned, you know. He'll get the job done to the utmost confidence. He's very experienced and has a great record to boot. I am glad to have had him represent me in court and trust me that I never thought I'd ever say that (and whoever does?). We explored every avenue of victory together and I personally enjoyed the experience, despite the seriousness of the accusation.If you have a case that needs to be represented at the highest levels, choose John T. Floyd. He's a good man and very good at what he does. Him and his team has the experience you need to make the best decisions and options to get the best outcome for your case. We got the best result I could possibly ask for, thank God.Seriously. Hire John. He knows what he's doing.Seriously.
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One of the few honest lawyers I have ever talked to. His complimentary consultation was knowledgeable and thorough. He knew exactly what the issue was and how to handle it. His candid … More appraisal of the situation and how to proceed saved me thousands of dollars in legal fees. If you have a case requiring expertise in John's area of practice, look no further. Hire this man!
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He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
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Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
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Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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He was very truthful and honest with us very great man I would recommend him and we would use him again
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Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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He explained my case better then any other lawyerPositive
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Very informative
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Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
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Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
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I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
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I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
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It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
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Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
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Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
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I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
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Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
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John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
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What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
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Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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Great service, very knowledgable and happy to help with any questions I had
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Quick to action and helpful and knowledgeable with entertainment industry based issues!
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Responded on a holiday week. Very knowledgeable and reassuring.
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Very professional
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I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
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The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
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From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
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I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
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These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
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John and Chris are true professionals! Love those guys like family!
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Mr. Floyd and his team are very knowledgeable, informative, and helpful.
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A team you can depend on to stand up and fight for you to prove the truth the whole truth!
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Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
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The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
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I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
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I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
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Extremely helpful!!! Helping me understand the law.
John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization
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