When should you hire a federal criminal defense attorney?
Hiring a federal criminal defense attorney
The federal criminal court system is vast, powerful, and dangerous for a multitude of reasons. To further complicate matters, federal cases are oftentimes investigated and prosecuted differently than state cases.
No one asks for either themselves or their loved ones to face criminal charges. While crime shows make for good television, it’s not entertaining to be targeted by a trained officer, or a detail-oriented federal agent, or an organized prosecutor. On television it’s pretty simple: When a police officer slaps the cuffs on, the arrestee tells a loved one to ‘call my lawyer.’ Real life is much different. Television shows typically concentrate on street criminal cases that involve quick arrests and very little warning that persons are going to be prosecuted. In contrast, most federal cases are investigated and prosecuted differently. This creates a question for persons subject to federal prosecution. How quickly should a person hire a federal criminal defense attorney? Short answer: As soon as you know the feds have questions about you. Consider this analogy: if a general practitioner identifies a troubling mass in a person’s lung, should that person delay consulting a specialist?
Federal Criminal Investigations
First, it is important to recognize that most federal crimes involve long pre-arrest investigations. There are two types of federal criminal cases: reactive and investigative.
Reactive Federal Cases
Reactive cases are simply those that pose an immediate public threat and require the fastest arrest possible. Such offenses are similar to state crimes. For example, bank robbery, which is a criminal offense under 18 USC § 2113, involves violent conduct which places an immediate duty upon law enforcement to arrest and stop perpetrators. While not every bank robbery is quickly solved, the law enforcement goal is to stop robbers as fast as possible. Whenever a bank is robbed the Federal Bureau of Investigation (FBI) is typically called to the scene quickly. Once agents arrive, often in coordination with local police officers, bank employees are interviewed, and surveillance footage is reviewed. As soon as the agents have the opportunity to make an arrest, they typically will do so. In such time pressured situations the last thing agents will want is for suspects to know that they are being looked at by the FBI.
Investigative Federal Cases
As opposed to reactive cases like bank robbery, most federal offenses are handled via extensive investigation. For example, a person who bills Medicaid falsely for work that was never performed could be prosecuted for Medicaid Fraud under 18 USC 1035. Unlike a reactive case, these matters will be investigated with a much lower emphasis on rapidity and much more concentration on detail. Such investigations often take a year or longer. Further, unlike reactive cases, the federal government will often inform suspects that they are being considered for prosecution.
Take the following example. Imagine a person is suspected of Embezzlement of a Financial Institution under 18 USC 656 or even Possession of Child Pornography under 18 USC §§ 2252A or 2260. Either of these offenses are very serious federal crimes that will likely be conducted via extensive investigation. Once such a suspect is identified, agents will often knock on the suspect’s door to ask questions far in advance of an arrest. Or agents may execute search warrants of computer files or anything else of evidentiary value. Once again, an arrest may not take place quickly.
However, just because the target isn’t arrested right away does not mean that a lawyer should not be sought quickly. Here are three instances when you have a heads-up that the federal government is building a criminal case.
I. The Knock and Talk: Federal Agents Want to Talk to You
Don’t be surprised if federal agents knock on your door and ask to talk to you, or leave a card with a note asking you to call them. If you call them or answer they door they might say they just want to ‘clarify some matters’ or ‘eliminate you as a suspect.’ It would be a horrendous and costly mistake to assume that agents are there for your benefit. Actually, they are adept at interrogating folks and oftentimes have their minds largely made up that a crime has taken place far in advance of the interview. Don’t forget that law enforcement agents are also allowed to lie to you, and they know just what to say to make it seem like talking to them is the best course of action. Resist the urge and talk to an attorney first.
Another example of a classically investigative case is Tax Evasion, also referred to as an Attempt to Evade or Defeat Taxes under 26 USC § 7201. These cases are almost exclusively investigated by Internal Revenue Service (IRS) agents. Many of these agents are CPAs and all who are members if IRS-CI (IRS-Criminal Investigation), are extensively trained to interrogate suspected tax cheats and analyze tax and business data.
II. The Federal Grand Jury Subpoena
Agents may also send a grand jury subpoena to persons suspected to either be involved in a crime or have knowledge of a crime. Such subpoenas are mandatory. It is important to know that even though attendance is mandatory when a person is under subpoena, that person is still entitled to refuse to answer questions under the 5th Amendment. Additionally, an attorney may be able to limit your exposure or convince a prosecutor that your testimony is not necessary.
III. The Federal Target Letter
A Target Letter is a letter is sent by an Assistant United States Attorney notifying a person that he or she is likely to be prosecuted in the near future. Such letters often accompany targets that the government has no opposition to allowing to stay out of custody until their case is resolved. While such letters are not court orders, ignoring them often results in the issuance of a criminal complaint which will be authorize an arrest. Once again, if you receive a target letter, it is time to call an experienced federal criminal defense attorney.
IV. The Delayed Federal Arrest
Occasionally a person is stopped, evidence is seized, and the person is not placed under arrest at that time. That can happen for a number of reasons, but rarely is it because the government is not interested in filing a case. Sometimes federal agents allow state agencies to make an arrest first and later prove up relevant conduct or pick up the case(s) after the local agency has worked it up. If you’ve been arrested for something that could be a federal offense, call a federal criminal defense attorney.
The Focus of Federal Cases
Aside from the fact most federal cases are often investigative as opposed to reactive, federal prosecutions are designed to combat enterprises as opposed to single individuals. As a result, individual criminal acts are left unanswered until the larger enterprise can be taken down. For example, drug distribution cases under 21 USC §§ 841 and 846 often include multiple defendants, Title III wiretaps, multiple searches, traffic stops, and pole-camera (pole cam) surveillance. Similarly, if a Drug Enforcement Administration (DEA) agent coordinates a planned traffic stop of a suspected drug dealer, local police officers may pull that person over under the auspices of a traffic infraction, and then attempt to develop cause to search that person. Sometimes, even if the car contains either narcotics or a large amount of money suspected to be drug proceeds, the officer will simply capture the drugs and/or money and let the driver go. This is because the officer doesn’t want the driver to suspect that the DEA is looking at his supplier and even possibly his supplier’s supplier. Further, the money could be the subject of a forfeiture case under 18 USC § 981.
What should I do if I learn I am under federal investigation?
The consequences of the investigative approach and the enterprise targeting model, persons targeted for prosecution often have an idea that the federal government suspects criminal activity. Warning signs cannot be ignored. If an agent knocks on a business’ door or visits a person at his home, a lawyer should be contacted immediately. It is not advisable to think that you can talk his or her way out of trouble.
The same is true if a person receives a target letter or a grand jury subpoena. Waiting for legal assistance simply allows such persons to be put in a situation where trained agents and prosecutors get a crack at them without legal representation. Also, if a person is pulled over but not arrested even when drugs or large amounts of money are seized, that person needs to get in touch with an attorney immediately.
While this axiom seems obvious, it is a prevalent phenomenon that persons who are approached by law enforcement or subpoenas or massive seizure simply allow themselves to be lulled into a sense that the problem will go away. In the end, federal targets should not wait to be arrested to consult legal assistance. When should a criminal defense lawyer be hired? As soon as a person suspects that the government is looking at them.
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Also published on Medium.