federal criminal defense attorneys handbook

Federal Criminal Defense | Federal Criminal Defense Attorneys

What happens when you are charged with a federal offense?

Federal criminal defense attorneys defend individuals who have been accused of violating a federal statute or the Constitution of the United States. While that may seem like a straightforward proposition, the federal system is very different than the state criminal system in Texas. From how the investigation is conducted to how a sentence is determined, every aspect of the federal system is unique.

A federal criminal case is very different than a state criminal case from investigation through sentencing.

Federal Investigations

While most state cases are initiated quickly after the occurrence of a suspected crime, federal cases may be investigated for months or even years before arresting individuals. Further, unlike most state cases, many federal cases involve extensive interaction between targets and law enforcement officials before an arrest is made. In other words, it is not uncommon for agents to knock on a target’s door out of the blue to ask questions.  These interviews often take place in circumstances where agents to do not intend to make an arrest in the near future. They will often couch their request to interview in terms of an inquiry or investigation. Agents may leave targets with the impression that they don’t intend to file criminal charges and simply need information for benign purposes. However, this conclusion is often false. Agents typically have already drawn the conclusion that a criminal investigation is warranted and are seeking the interview to develop evidence against a target.

If you are ever contacted by a federal law enforcement agent who wishes to speak to you, it is extremely important that you immediately contact a federal criminal defense attorney. Your attorney will be able to guide you through the process, advise you as to whether you should agree to be interviewed, and attend any interviews with you. Very often in federal cases, this is the single-most important opportunity you will have to affect the outcome of your case.

  • For example, an FBI (Federal Bureau of Investigation) agent may accompany a state Attorney General’s official to retrieve files from a doctor’s office that bills Medicaid or Medicare.
  • An IRS (Internal Revenue Service) agent may visit a small business to ask questions regarding tax compliance or transaction reporting requirements such the filing of an 8300.
  • A DEA (Drug Enforcement Administration) agent may visit a car dealership with questions as to the rapidity with which certain customers trade-in vehicles.
  • An ATF (Bureau of Alcohol, Tobacco, and Firearms) agent may visit a homeowner asking questions about a gun he just sold.
  • A Treasury agent may visit a coin collector to inquire whether certain coins contain elements that are not in compliance with national standards.
  • An FBI agent may visit a convenience store owner and begin to ask questions regarding a bookmaking business.

While all of these examples could be described as simply consistent with regulatory concerns such as tax compliance or Medicaid compliance, they all are consistent with investigations for various federal offenses such as Structuring or Willful Avoidance of Transaction Reporting Forms under 31 U.S.C. §§ 5313(a), 5324, or 5331; or, Federal Healthcare Fraud under 42 U.S.C. § 1320a-7b; or Tax Evasion under 26 U.S.C. § 7201; or Money Laundering under 18 U.S.C. §§ 1956or 1957; or Unlawful Firearms Transactions under 18 U.S.C. §§ 922 or 924; or Wire Fraud under 18 U.S.C. 1343; or Racketeering under 18 U.S.C. §§ 1961 and 1962; or Operation of an Illegal Gambling Business under 18 U.S.C. § 1955.

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When should you hire a federal criminal defense attorney?

When to Hire

Stages of Federal Criminal Cases

Criminal Complaint

Under Fed.R.Cr.P. 3 & 4 a magistrate judge may issue a complaint finding a determination that probable cause exists for the arrest of a person. Once that person is arrested, the Government has 30 days to file an indictment under 18 U.S.C. § 3161.

Arrest

Once a person is arrested for a federal offense that person is brought to meet with a Pre-Trial Services Officer. This officer is employed by the United States Probation Office (USPO). At this point the officer will ask questions regarding the arrested person’s criminal history, drug dependency (or lack thereof), and finances. These questions afford the officer to make a recommendation to the judge as to whether the arrested person should be released pending the course of the case or not.

Preliminary Hearing / Initial Appearance

Rules 5 and 5.1 of the Federal Rules of Criminal Procedure for the United States District Courts call for an Initial Appearance and a Preliminary Hearing. An Initial Appearance must be conducted “without unnecessary delay.” During this appearance a United States District or Magistrate Judge must inform the arrested person of the contents of a criminal complaint including the charges involved, the person’s right to counsel, the right to a preliminary hearing regarding probable cause and detention and his right to remain silent.  A preliminary hearing must occur quickly after an arrest and is designed for the person’s attorney to present evidence to challenge probable cause for the arrest and demonstrate that the person is not a danger to the community or a flight risk. Fed.R.Cr.P. 5.1. At the preliminary hearing, a federal magistrate judge will inform the individual of the charges against him. The Government must be able to establish probable cause for the offense that person is charged with. In many jurisdictions there is no bond in the federal system. Instead the federal magistrate judge will have a hearing regarding detention. This is often wrapped up in the preliminary hearing. At the Detention Hearing, the magistrate will determine if the individual accused can be released until the date of the trial. There is a presumption against release in drug cases.Additionally, if a person has a pending state case, was in custody on a state case, or was on probation or supervised release at the time of the alleged offense, it is unlikely that person will be released. Other considerations a judge might take into account are the nature of the alleged offense, the person’s criminal history, and whether or not there was a victim to the alleged offense.

Arraignment

At the arraignment, the accused is allowed to enter a plea of guilty or not guilty. Fed.R.Cr.P. 10. If the plea is guilty, the case will be reschedule to allow for the Presentence Report interview. The court will ensure that the accused has a copy of the charging instrument, allows for an opportunity for the instrument to be read in court, and then asks the accused how he wishes to plead.

Charging Decision

A criminal case can be brought into court by information or indictment. These are charging instruments that lay out the elements of the offense a target is alleged to have committed. While an Information can be filed unilaterally by an Assistant United States Attorney, an Indictment is returned by a federal grand jury after the grand jury has determined probable cause exists to arrest a person, organization, or company. A grand jury is a panel of between 16 and 23 persons who conduct proceedings in secret. These proceedings are meant to determine if probable cause exists for the issuance of an Indictment. Fed.R.Cr.P. 6. All cases are expected to proceed under an Indictment unless a person waives prosecution by indictment under Fed.R.Cr.P. 7.

Discovery

Federal Rule of Criminal Procedure 16 lays a list of materials that must be disclosed to the defense upon discovery. A federal criminal defense attorney will obtain discovery – or the evidence against the accused – in the criminal case. This may include written documents, audio and video recordings, lab reports, and the opportunity to inspect physical evidence such as guns, or drugs. The discovery provided in complex white collar cases, such as fraud (bank fraud, mortgage fraud, securities fraud, tax fraud, and healthcare fraud), as well as public corruption cases can be overwhelming for anyone who is not experienced in handling these matters in the federal arena. In terms of volume, all federal cases are often more extensive and complex than state cases. This is for many reasons. First, federal cases are designed to target enterprises or conspiracies. This means that cases often involve multiple persons and events. Second, federal offenses often include usage of wire communication or the postal system, which brings additional procedures and materials. Third, federal law enforcement agencies are well funded. The more resources an agency has, the more charges and evidence they can elicit.

Plea Bargaining

Most people are familiar with state plea-bargaining procedures from television or movies. Basically, plea-bargaining in these circumstances involves a defendant pleading guilty in exchange for a specific sentence or range. For example, a Texas defendant may plea bargain a possession of controlled substance case for 3 years in the Institutional Division of the Texas Department of Criminal Justice. However, in the federal system, such plea bargains are rare. Instead, in the federal system defendants are expected to make a decision to plea without a definite idea as to the consequence he or she faces at sentencing. For informational purposes, a federal plea offered in exchange for a specific sentence is called an 11C1C plea. As stated before, they are rare and oftentimes-federal judges frown upon them.

According to the Administrative Office of United States Courts, over 90% of federal cases plead guilty instead of going to trial.

So if 11C1c resolutions are rare, what does a federal plea bargain look like? If a defendant pleads guilty and that plea of guilt is in return for some concession by the Government – for instance dropping a charge, the agreement is called a “plea bargain.” For example, many narcotics defendants face multiple-count Indictments. A defendant may reach a plea bargain where, in exchange for a guilty plea, the Government will drop all remaining counts. Sometimes plea bargains involve a defendant waiving his or her right to appeal a sentence. This should only be done on advice of counsel. It should be noted that cases may result in a guilty plea without a plea bargain. Many cases proceed in this fashion.

Plea or Trial

If a defendant does not plea guilty then the Government has two choices: dismiss or trial. Needless to say, dismissals are rare. This is because there is a general expectation in most U.S. Attorney’s Offices around the country that if a prosecutor seeks an indictment then he or she must be able to justify bringing the charge. A dismissal would be a signal that something was either misunderstood or misjudged by that prosecutor. Further, most offices require that line prosecutors present their proposed indictments to managers before presentment to a grand jury. All defendants have a right to a jury trial.

Presentence Report Interview

Whether a defendant is convicted as the result of a guilty plea or a trial, that person will undergo a Presentence Report Interview. A U.S.P.O. conducts this interview and then prepares a Presentence Report for the court. This report contains historical, biographical, criminal history, medical, and financial information. Further, the PSR describes the offense in detail. The findings within a PSR are critical to any defendant because they set the parameters for relevant conduct under the United States Sentencing Guidelines. This means that the judge gets his or her facts from probation officers.  These facts are the foundation of a sentence.

Objections to PSR / Sentencing Memoranda / Character Letters

If a PSR contains exaggerations or inaccuracies then a defendant may object to portions of it. For example, if a probation officer arrives at the conclusion that a defendant had an aggravating, or leadership, or role in an offense then an upward adjustment in the guideline calculation is warranted. However, if the defendant disagrees then he, through his attorney, can object. If the judge sustains the objection then that enhancement will not enter the sentencing calculation. Additionally, an attorney may submit character letters on behalf of her client as well as a sentencing memorandum. These documents allow the court to consider positive factors at sentencing. While it is easy to feel hopeless as a defendant, these steps can significantly improve a defendant’s circumstances if done well.

Federal Sentencing

Before 2005, sentencing in the federal system was based almost exclusively on the Federal sentencing guidelines. The guidelines describe a series of factors that are to be considered in every federal sentence. They should be thought of as a mathematical approach to sentencing where each offense and defendant is given a score. Once that score is tabulated, then a resulting recommended punishment range emerges.

For example, imagine a person is convicted for dealing 1 kilogram of ice (a form of purified methamphetamine also referred to as methamphetamine actual) and the offense involved its importation from Mexico and it was distributed through a drug house. Also, imagine that that person has 1 prior felony conviction for Aggravated Assault in 2010 where that person received a 3-year prison sentence. After, the PSR interview is conducted the probation officer will consult Government witnesses and make findings. Those findings will be put in the PSR and be the guideline starting point for the judge.

Applying the guidelines to this fact pattern results in a significant guideline calculation. First, the quantity of 1kg of ice results in a base offense level of 34. Then, a 2-level enhancement for importation is added and a 2-level enhancement for maintaining a premises for the purpose of narcotics distribution are added. This results in a final offense level calculation of 38. Then, the criminal history is calculated. With the one prior felony sentence the defendant has 3 criminal history points which puts him in criminal history category of II.

The important question becomes what does an offense level of 38 and a criminal history category of II mean. When consulting the guidelines sentencing table it comes into focus. This offense level and criminal history score calls for a recommended sentencing range between 262 and 327 months. Yes, that is a sentencing range of between 21 years and 10 months to 27 years and 3 months.

For anyone that comes to the conclusion that the federal system is harsh for drug offenders and that the guidelines try to turn justice from an art that balances morality, public standards, fairness, aggravating and mitigating circumstances into a heartless, scientific endeavor that strives for the ambiguous impossibility of consistency there can be only one response. That person is absolutely right.

Luckily, in U.S. v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the sentencing guidelines are advisory only, not mandatory.  As a result, the guidelines are only one of seven factors set forth in 18 U.S.C. § 3553(a). The first of these factors calls for a sentence to be based upon the “nature and circumstances of the offense and the history and characteristics of the defendant.” This is a major development that allows judges to consider a myriad of factors such as the possibility that the criminal history category is over representative of a defendant’s actual history or that a defendant is a good parent or that the overall drug quantity seriously exaggerates the level of narcotics distribution a defendant actually should be held accountable for. Other examples include the possibility that a fraud loss is inflated because the guidelines failed to consider whether that loss calculation overstates the seriousness of a defendant’s conduct. Also, Bookerallows courts to consider whether a defendant’s acts of public service should be considered.

Ultimately, Booker tries to put fairness and compassion back into the system. Further, it allows attorneys to present a myriad of factors to try to improve their clients’ position.

Despite Booker’s holding, federal district courts are still directed to make a guideline calculation in every case and use that as the beginning point when determining a sentence.

 

Under the federal system felonies are categorized as Class A, B, C, D or E and Misdemeanors are either Class A, B, or C. Class A felonies are offenses for which the maximum penalty is life or death. Class B felonies are offenses with a maximum penalty of 25 years or more. 18 U.S.C. § 3559.

Unlike the state system, probation is a rarity in the federal system. Although all offenses categorized as Class C felonies or below are eligible for probation 18 U.S.C. § 3561, the truth is that the guidelines (while not mandatory the guidelines still are the starting point of sentencing) severely restrict the availability of probation. In addition to classifying felonies and misdemeanors as either Class A,B,C,D, or E, the guidelines also implement Zones within the sentencing table. Only guideline calculations within Zones A or B are eligible for probation. U.S.S.G. § 5b1.1. However, only offenses with an offense level of 11 or lower are eligible for probation. This applies to very few felonies. For example, all economic offenses such as theft, fraud, or forgery that involve a loss amount of $70,000 or more will receive an offense level calculation of at least 14. Even if a person were to plea guilty quickly such person would be looking at an offense level of 11. Unless that person has a very low criminal history, probation is out of the question…at least as far as the guidelines are concerned. In terms of narcotics, the only way to get below a base offense level of 14 is if the offense involved less than 5 grams of methamphetamine or 50 grams of cocaine. Keep in mind that a gram is roughly the same amount as the substance contained in a Sweet n Low packet. By the way, all of these examples do not include consideration of any significant amount of criminal history or enhancements for circumstances such as aggravating role, importation, presence of a firearm, or the myriad other enhancements contemplated under the guidelines. Ultimately, probation is only achieved where an attorney convinces the judge to vary from the guidelines.

While home detention is sometimes available, the reality is that the great majority of federal defendants should prepare for a contemplated sentence of imprisonment. Thus, it is all the more important that persons who have received an indication that they are facing criminal charges (either via a visit from a federal agent for an interview, a letter from a U.S. Attorney’s Office, or an arrest) should immediately consult an attorney to proactively address their situation. Time is on the Government’s side, not the defendant’s.

The federal system has abolished parole. Instead, offenders who receive a prison sentence are typically placed on a post-prison probation called supervised release. 18 U.S.C. § 3583. The length of such a term is based upon the Class of offense of conviction. For example, Class A and B felonies are subject to a term of supervised release of not more than 5 years whereas Class E felonies and misdemeanors are subject to a term of not more than 1 year. During these terms, offenders are subject to a substantial number of conditions including submission of urinalysis testing, payment of restitution, availability for home visits, reporting to a probation officer, disclosure of financial information, reporting of any change in residence, committing no offenses against any locality, state, or federal jurisdiction.

In the event that any of these conditions are broken a defendant may be brought before the district judge for either modification or revocation. 18 U.S.C. § 3583(e). This means that conditions may become stricter or the defendant may be sentence to additional incarceration. The length of incarceration depends on the class of conviction. For example, revocation of a supervised release term for a Class B felony could be as long as 5 years. The fact that the offender may ultimately spend more time in jail than their original sentence (even with good time credit) is of no consequence. Ultimately, supervised release extends the restrictions, and jeopardy, of offenders beyond the initial term of imprisonment.

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Title: They saved my son’s life.

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