Criminal Defense in Federal Court
"What if I am being
investigated for or charged with a federal offense?"
Being investigated for or charged with a federal crime
is a terrifying, humiliating, and embarrassing event. We all
know that sentences in federal court are severe and longer
than comparable cases in state court. Because our laws are
written by politicians, many of whom are former federal or
state prosecutors, the laws always favor the government. Politicians
get re-elected by supporting "tough on crime" legislation.
Our civil liberties are constantly being eroded.
Our attorneys understand the complex federal system and know
how to work within it. Our attorneys are known for being aggressive,
thorough, and decisive. Our proven strategies have worked
time and again.
The lawyers at Norton Hare believe that
one of the keys to a successful defense is having an informed
client. For this reason, we present a general overview of
the federal system.
Initially, it is important to understand that the federal
system is often a sentencing system. Criminal defendants in
this country are presumed innocent until proven guilty. Unfortunately,
many jurors tend to look at the equation in the opposite fashion.
Realistically, once the United States government charges you
with a crime, you are presumed guilty unless and until you
can prove yourself innocent. In federal cases, federal agents
and prosecutors are not under the same time constraints as
in state prosecutions. Federal agents tend to wait until they
have an "airtight" case, usually by having confidential
informants working the inside. In addition, federal investigators
employ extensive surveillance, wire taps, and other sophisticated
means of obtaining evidence typically not seen in state cases.
As a result, most federal cases are relatively easy for the
prosecutor, and guilt is presumed. The real question is the
length of the sentence.
Federal investigations are unpredictable. Sometimes the first
time you learn that you are being investigated is when you
are charged. Commonly, however, federal agents will visit
you to get a statement. Prosecutors know that the strongest
evidence is typically the words of the accused. If you are
approached by an agent, immediately invoke your right and
ask to speak with a lawyer. This should end questioning. Federal
agents have extensive training on eliciting incriminating
statements. They are also trained to stop questioning when
a suspect clearly and unequivocally invokes his right to counsel.
Accordingly, you must invoke your right to speak with your
lawyer. Then you should immediately contact an attorney. Our
attorneys have extensive experience advising clients in this
situation. We have been successful in preventing any charge
whatsoever in some cases, and in others, influencing how the
case is eventually charged.
All offenses against the United States are found in the
United States Code. These laws are commonly referred to as
the statutes. Just as a state legislature passes laws, the
United States Congress enacts statutes to be the laws used
in the federal courts. For many charges, the punishment upon
conviction is found in the actual statute itself. This is
typically some range of years. Once the range is established,
the specific punishment upon conviction is then determined
by the United States Sentencing Guidelines. Sentencing guidelines
were first published by the United States Sentencing Commission
in 1987 in order to give certain crimes uniform sentences.
The idea was that many criminal defendants with the same charges
were getting vastly different sentences. Congress gave authority
to the United States Sentencing Commission to investigate
and make recommendations as to uniform sentences for certain
crimes. As you may have heard, these sentencing guidelines
are very punitive in nature and call for lengthy sentences,
particularly in drug cases. The guidelines are extremely complex
and can be quite difficult to understand.
The Charges Get Filed:
There are a couple of ways that a case gets filed. First,
a federal agent may approach a magistrate judge with a sworn
affidavit accusing someone of a crime. If the magistrate judge
believes that probable cause exists to believe that the accused
committed the crime, he or she may sign the Complaint and
issue an arrest warrant. The Complaint is typically used in
cases where government wants your immediate arrest and detention.
The prosecutor can also file a similar document called an
Information. If the case proceeds by way of an Information
or a Complaint, the accused is entitled to a preliminary hearing.
At the preliminary hearing, the burden is on the prosecution
to put on evidence sufficient for the judge to find probable
cause that a felony was committed and that the accused could
have committed it. This is a very low burden of proof and
the accused should make a decision on whether or not to have
such a hearing with the advice of counsel.
The final way to be charged
is by way of an Indictment. The Indictment lists all of the
charges and it is sworn to by the head of the Grand Jury.
This is a secret group of people who have reviewed the government's
evidence and decided whether or not there is probable cause
to charge. In cases where an Indictment is issued, the accused
is not entitled to a preliminary hearing. Commonly, a case
begins with the filing of a Complaint. Following the preliminary
hearing, the government will seek an Indictment. The next
step is disposition: trial or plea.
Upon arrest, the accused learns whether the government has
filed a motion to detain them pending trial. Typically, the
accused would be arrested by the officers investigating the
case or the United States Marshals and transported to a federal
holding facility. The accused is entitled to an immediate
hearing, notified of the charges, and given a chance to seek
bond. The latest figures from the Department of Justice show
that 52% of those charged have a pretrial detention hearing.
Of those, 75% of those with a hearing are ordered detained.
Once arrested, the accused
will immediately have a meeting with a pretrial services officer
who will conduct a quick background investigation and provide
a report to the judge with recommendations for whether or
not you should receive bond. Any statements to the pretrial
officer are very important and if possible, the accused should
have the assistance of an attorney. Under no circumstances
should the facts of the case be discussed with the pretrial
services officer. Anything said can and will be used in court.
For an accused person, the first option is to plead not guilty
and dispute all charges. Our firm has been very successful
in trial. If you decide to fight the charges, a jury of 12
will decide whether you are innocent or guilty. If you are
found not guilty, the case is over. If you are found guilty,
you will have a sentencing hearing sometime after the jury
verdict. A presentence investigation report will be prepared
by the probation office and provided to all of the parties
prior to the sentencing date.
The second option is to
plead guilty as charged to the court. Such a disposition does
not involve any deal with the prosecutor. You are likely to
receive a minimal reduction for acceptance of responsibility.
While this is not usually recommended, it is sometimes the
right course of action.
The third and final option
if you are charged with a federal offense is to plead guilty
and cooperate with the government. If you cooperate and provide
"substantial assistance" to the government in the
form of information, identification of other criminal actors,
other conspiracies and even provide testimony, the prosecutor
may agree to file a downward departure motion on your behalf
which is commonly called a 5K1.1, 18 U.S.C. §3553 motion.
The latest Bureau of Prisons statistics estimate that between
one-third and one-half of all inmates in the Bureau of Prisons
have reduced sentences due to such a motion being filed. This
means that more than one-third to one-half of all criminal
defendants agree to plead guilty and cooperate - - some get
probation. The government will file such a motion if and only
if substantial assistance is provided. To receive the prosecutor's
help, you have to be completely truthful as well as provide
information that can assist the government in a new prosecution,
or in obtaining a conviction in a pending matter.
The penalties described above are just the beginning of the
sentencing process in the event that the person is convicted.
In addition to the mandatory minimum guideline ranges, the
court will consider departures - - upward and/or downward
from the base level sentences. An example of some departures
include whether there was any impact on the victim, an upward
adjustment for obstruction of justice, a downward adjustment
for acceptance of responsibility, specific offense characteristics,
role in the offense, criminal history, upward adjustments,
the impact of a plea agreement, and any cooperation. These
adjustments can add or subtract from the base offense level
as well as the counts on the criminal history score.
Why Time is of the Essence:
Once a person is accused in federal court, the speedy trial
clock begins ticking. The government has a limited amount
of time to get a person to trial. The length of time depends
on whether the person is held without bond or not. If you
want a trial, you must make the critical decision as to whether
to assert your speedy trial rights - - quickly.
Additionally, federal prosecutions
commonly charge more than one defendant. Because the statutory
and guideline ranges are so punitive, most lawyers and their
clients begin the case by trying to "cut a deal"
and cooperate. Typically, the defendant who first hires a
lawyer or the defendant who has the most to lose cooperates
first and gets out first. The prosecutor usually will give
a limited number of 5K1 motions. Thus, the defendants who
have waited too long will be left out in the cold. Often,
the least guilty person refuses to enter any type of cooperation
agreement because of his/her minimal culpability. In the end,
this person may receive more time than the actual ring-leader
because of the ring-leader's cooperation.
For these reasons, it is
critical to hire a lawyer who knows the system and who can
guide you as to the best course of action quickly. Our lawyers
have the type of experience necessary to help you make those
decisions. The clock is ticking . . .
A Final Note:
If you are being investigated or have been charged by
the government with a federal offense, you know that the case
will have a major impact on the rest of your life. You only
get one bite at the apple and so you must choose your attorney
correctly the first time. A strong defense is certainly expensive,
but the price is minimal compared to what the government wants
you to pay. Our attorneys offer free initial consultations.
Our results speak for themselves. If you have been charged
or think you might be charged, the time to act is now.
top of page