Federal Survival Guide: What to do if a loved one is arrested for a federal offense
What should you do if a loved one is arrested for a federal offense?
Most people are not prepared for the arrest of a loved one and, hopefully, not many people will have to learn. For those who find themselves in this situation, it is important to keep a few things in mind.
First of all, federal cases operate differently from state cases. That means that what is portrayed in television is not helpful. For example, most TV shows and movies center upon state crimes such as robbery or murder. These are reactive crimes where arrests are often made quickly after the crime. Once arrested, a suspect is charged and arraigned (which simply means that a judge explains the charge against the suspect and the suspect’s rights). Then a bail bond is set by the judge who demands an amount of money be put up to assure the suspect will attend court proceedings.
However, in the federal system bail bonds are rarely used. Instead, federal magistrates simply hold an initial appearance hearing and a detention hearing within 3 days of an arrest (based on Rules 5 and 5.1 of the Federal Rules of Criminal Procedure.) An initial appearance setting affords the suspect an opportunity to learn the charges against him and whether court-appointed counsel is available. In addition, during an initial appearance, the judge may hold a hearing to decide whether probable cause exists for the case.
A detention hearing determines whether a person is a danger to the community or a flight risk. The authority of the Court to order a person to remain incarcerated pending trial is provided for under 18 USC 3142 (e) and (f). Specifically, the following offenses or factors subject a person to pretrial detention.
- Crimes of violence under 18 USC 3156.
- Offenses with a maximum sentence of life imprisonment or death.
- Controlled substance offenses punishable by 10 years or more. Typically alleged under 21 USC 841 and 846.
- Felonies involving the use of a firearm.
- Felonies involving a minor victim.
- A serious risk a defendant will flee.
- A serious risk that the defendant will obstruct justice.
If any of the above factors exist, then the Court must determine whether the defendant will present a flight risk or a danger to the community or another person. If so, then the defendant will not be released.
It is important to also know that certain offenses actually invoke a rebuttable presumption that the defendant will be a risk of flight or a danger to the community. Specifically, the following offenses trigger this presumption.
- A controlled substance offense punishable by 10 years or more.
- A firearms offense under 18 USC 924(c).
- A crime of terrorism.
- A felony involving the failure to register under 18 USC 2250.
While dissimilarities between the federal and state approaches to pretrial detention are significant, they are not the only differences between the two systems. Other variances exist regarding certain rules of evidence, jurisdiction, sentencing standards, and trial procedure, just to name a few. Federal cases are their own animal and loved ones are even more in the dark when a federal charge is levied. This is because, unlike state cases, the federal cases generally extend far beyond the single offense the family may be aware of. Federal cases can reach back and include “relevant conduct” that spans years.
The following two examples illustrate some of the challenges loved ones face.
Example One. Early in the morning DEA agents or local agents raid your son’s home to execute a search and arrest warrant. During the raid your son is taken into custody. You later find out the prosecutor is charging him for possession of a controlled substance, but is seeking to prove up two years of relevant conduct to enhance his punishment range.
Example Two. Your uncle is arrested at his workplace by IRS agents who state that he has been indicted for mail fraud under 18 USC 1341, wire fraud under 18 USC 1343, money laundering under 18 USC 1956, and tax evasion under 26 USC 7201. You find out that the prosecutors are seeking to bring in five years of relevant conduct to enhance his possible punishment range.
Obviously, under either scenario a loved one is being accused of federal felonies, which carry imprisonment. As stated above, very few people are prepared for these types of circumstances. The following steps can help loved ones confront this type of a crisis.
1. Keep a copy of whatever warrant is offered.
Whenever a warrant is executed, whether it be an arrest warrant or a search warrant, agents will typically leave a copy of the warrant with someone present. Understand that a warrant only includes a judge’s signature and the language of the order. Warrants themselves do not contain the facts that are used to justify the search or arrest. The document with that information is the affidavit supporting the warrant. While the affidavit contains the real meat, the warrant can at least offer some useful information. Warrants will tell which jurisdiction and venue will hold the detention hearing. They also will list an agent’s name. These pieces of information can help loved ones and attorneys figure out where the loved one is going to be held and what kind of charge he or she might be facing.
2. Request the arresting officer’s/agent’s contact information and where the defendant will be taken.
If you are present at the time of the raid or arrest, you can ask agents for their contact information and which jail the suspect is likely being taken to. This information will also allow your loved one’s attorney to make contact and begin to discuss the Government’s position on detention as well as a general sense of what your loved one is accused of.
3. Instruct your loved one to inform law enforcement that he or she would be willing to speak to investigators only in the presence of an attorney.
If you are present at the raid or arrest, or you make contact via a jail visit, understand that you are not a lawyer and your conversation, if at a jail, will be recorded. While it may sometimes be beneficial to speak to an agent, it is never wise to do so without an attorney present. Agents are skilled at interrogating and gathering information that result in statements often used against your loved one. In the alternative, if the interview takes place after an attorney is hired, then it transfers the interrogation from a confession to a proffer. Confessions get you time. Proffers oftentimes lower sentences.
4. Seek representation for your loved one immediately.
a. Ask if the attorney can be present for the upcoming initial appearance and detention hearing.
b. Request the attorney visit your loved one as soon as possible.
c. The attorney should quickly seek discovery materials to review with your loved one.
d. The attorney should also discuss the sentencing guidelines and the implications of a federal charge including the difference between conspiracy and possession.
The federal sentencing guidelines are a series of principles and rules that suggest a sentencing range to judges if someone pleads guilty (or is found guilty after a trial). For example, USSG 2D1.1 sets the standards for most federal drug cases. This guideline bases a sentence upon the quantity of drugs involved in a case and a myriad of other factors such as the use of a premises to distribute drugs or the importation of drugs. These guidelines are no longer mandatory since the decision rendered under U.S. v. Booker, 543 U.S. 220 (2005). Nonetheless, judges must consider the guidelines and most sentences still fall within the guidelines. Since the guidelines are so important, it is extremely important that your loved one’s attorney discuss the possible applications of the guidelines to the case.
5. Prepare for the initial appearance and the detention hearing.
In federal courts, the decision whether someone remains in jail (is detained) or released is not predicated upon the ability to secure a bail bond. Instead, a detention hearing is scheduled quickly after an arrest. Under federal law, persons charged with a drug offense are presumed to be a danger to the community and a flight risk. This means that unless the Government agrees to a release or you are able to establish that your loved one is not a danger to the community and will appear for court, your loved one will remain in jail until trial. Simply put, in drug cases, release is the exception rather than the norm.
This means that you should start to consider if anyone can vouch for the reliability of your loved one at a detention hearing. Presenting testimony that the defendant has ties to the community, a job, family in the area, lack of a prior criminal record, and a place to stay if released are vital pieces of information that can help your loved one get released. You are likely one of the few persons who can establish these facts at the hearing. You should make your willingness and availability to testify at the detention hearing known to the attorney as quickly as possible.
6. A few housekeeping items:
a. Your loved one will be set for trial quickly. This setting can be delayed if there is some benefit to doing so.
b. Your loved one will have to decide whether to go to trial or negotiate a plea of guilty.
c. Your loved one’s attorney will only be able to divulge some information to you. The attorney/client privilege does not extend to most loved ones.
If your loved one has been arrested for a federal offense, call us (817) 203-2220. Find out how our attorneys are uniquely qualified to handle these matters.