FEDERAL CRIMES ARE SERIOUS
For federal criminal proceedings, it is imperative to be represented by a lawyer who is familiar with the federal rules of evidence, federal rules of criminal procedure, trial procedure, and the federal court system in general. The lawyer should also be familiar with federal sentencing procedures and recent Supreme Court rulings which affect sentencing. Your lawyer should be familiar with the U.S. Attorney's office that is handling the case, and also with the federal investigative agency in charge of the investigation. If you are involved in the federal criminal system, it is important that your lawyer or team of lawyers is very experienced and knowlegable as a federal criminal defender.If you are facing criminal charges (or potential charges) in federal court, you need a federal criminal defense attorney to represent you. Your attorney should be able to provide you with answers to your legal questions, tell you how the law applies to your case, and represent you to the fullest extent.
The law of confidentiality exists to protect you and your defense. It applies to all contact between you and your attorney, and your attorney's staff. Anything you tell anyone else including family, friends, or cellmates is not confidential, and the court can call those individuals to testify in court. Your attorney cannot discuss your case with your family or friends without your permission. Confidentiality applies to law enforcement agents as well. They may appear to want to help you, but remember that their duty is to solve crimes. Before talking to anyone, including law enforcement agents, consult your attorney or have your attorney present during questioning.
The Federal Criminal System
The federal criminal system is similar to the state system, but has several significant differences. One difference is that the typical United States Attorney's office, who prosecutes federal crime charges, generally has more time and resources to prosecute than would a state prosecutor. Federal prosecutors usually have better academic credentials than state prosecutors, and many have a lot of leeway in choosing cases to prosecute through the federal courts. Federal crimes, because they tend to be of an interstate nature, are usually more factually complex.
As a result, federal criminal defense involves cases which are usually more difficult to defend than state cases, and the cost of a federal defense attorney is often very high. Federal Defender's offices are located in each federal jurisdiction and provide legal representation to indigent defendants.
Federal Criminal Investigations
If you are contacted by federal authorities in relation to a criminal investigation, it is imperative that you do not say anything that is self-incriminating, as you are protected by the Fifth Amendment. A federal criminal defense attorney will help you determine the reason for the investigation and why you are being questioned. Your attorney can also help you avoid falling into a questioning "trap" and from saying things that may hurt your defense. A federal criminal defense attorney may be able to work out a deal such that you will cooperate with the investigation in return for a more favorable treatment upon conclusion of the investigation. The defense attorney may also be to secure an immunity agreement where the U.S. Attorney declines to prosecute in regards to a particular offense or investigation.
The Federal Crime Process
The federal crime process is designed to do justice for not only the accused, but also the people of the United States.
The federal crime process begins in court, and moves steadily towards trial. There are many facets to the system. This section introduces you to the system of federal procedures beginning with the arrest and ending with sentencing.
1) Federal crimes & arrest
The United States marshal's service is responsible for housing persons arrested for a federal charge. Initially, the person arrested will probably be held for some hours by the arresting agency (DEA, FBI, INS, Customs, Border Patrol).
After the arresting agency has processed the individual for arrest (and usually after interrogating or attempting to interrogate the person), the arresting officers turn the person over to the marshals. The marshals will usually place the person in a metropolitan correctional center. The marshals will keep the person in custody until he/she is bailed out, the charges are dismissed, or the person is sentenced.
If the person is sentenced to custody, the responsibility for housing the person passes to the Bureau of Prisons ("BOP").
2) Federal crimes & interrogation
If you are in custody and the authorities want to question you, they must advise you of your Miranda rights. Your Miranda rights are:
You have the right to remain silent
If you give up the right to remain silent, anything you say might be used against you in a court of law
You have the right to an attorney before questioning; and
If you cannot afford an attorney, one will be appointed for you by the courts.
This does not mean that the arresting agents will call a federal crime attorney for you before they begin to question you. It does mean that if you already have an attorney, you can have him or her come and consult with you before you answer any questions.
Given this, if the agents want to question you, you should say either (1) I wish to remain silent; or (2) I wish to have an attorney present, but preferably both.
If you say you want to remain silent, but do not ask for an attorney, they can keep coming back to try and question you in the hopes you will get tired and agree to answer questions.
If however, you ask for an attorney, they cannot come back to question you other than to clarify your desire to have an attorney present. Accordingly, you should say, in no uncertain terms "I want to talk to an attorney before you ask me any questions."
3) Federal crimes & arraignment
After being arrested and turned over to the marshals, the person is taken before a magistrate to be arraigned on the first available business day. Usually, a person is taken before a magistrate within 48 hours of arrest. However, if someone is arrested on a Thursday and turned over to the marshals on a Friday before a weekend with a Monday holiday, that person will probably be arraigned on Tuesday, five days after arrest. At the initial arraignment, the person will be interviewed by someone from the federal public defenders' office. Unless the person has already hired an attorney, federal defenders represent everyone at the initial arraignment.
At the arraignment, the defendant will be informed of the charge(s) against him/her, counsel will be appointed if the defendant cannot afford to hire counsel, and bail will be set. The defendant will be given a date to return to court for a preliminary examination ("PE") in approximately 10 days.
4) Bail options
Unlike arrests for state law crimes, you cannot go to a bail bondsman and post a bail to get released. Instead, you have to wait until you are brought before a magistrate judge, who will then set conditions of release, which include a bail amount.
Usually bail will be either:
A signature bond, where the defendant or a number of relatives or close friends will promise to pay money if the defendant fails to appear or violates the other conditions of his release, or
The defendant or a number of relatives or close friends will post a cash deposit, or
The defendant or a number of relatives or close friends will post real estate as security for his or her release.
In the event that the defendant fails to appear or violates the conditions of release, the court may forfeit the bond and the money will be paid to the government or the government will take title to the property (or have a lien on the proceeds of any sale of the property). At the conclusion of the case, the bond will be exonerated and the money returned or property lien released.
Accordingly, the first thing you should do when arrested for a federal crime is call a lawyer (or call a relative and have him or her call a federal crimes attorney).
5) Federal crimes & the grand jury
The grand jury is composed of approximately 14-23 persons selected from the community. These people meet in secret and hear evidence from the prosecution to determine if there is probable cause that a crime was committed and that the defendant committed the offense. The grand jury meets in secret; no judge is present, no defense attorney is present.
The prosecutor calls and questions witnesses; based on this one-sided presentation, the grand jury makes its decision. The standard is very low. Only a simple majority of the grand jurors need to find probable cause for an indictment (the formal charging document) to be issued.
Grand juries can and are used by the prosecutors to investigate cases where no one has been arrested as well as cases where someone has already been arrested. Grand juries can issue subpoenas and compel persons to testify and submit documents to them.
If you are subpoenaed to appear as a grand jury witness or to produce documents to a grand jury, you should seriously consider seeking competent legal representation.
6) Preliminary examination
A preliminary examination is a hearing where a magistrate judge hears evidence and makes a determination as to whether there is probable cause that the defendant committed the offense charged. If the case has already been indicted by a grand jury, there will be no preliminary examination.
Misdemeanors do not require a preliminary examination and this information does not apply to them. The vast majority of cases brought in federal court are felony charges.
7) Preparing for federal crime trials
If the defendant is indicted by the grand jury, the preliminary examination is canceled and the defendant is arraigned on the indictment. As before, this arraignment merely consists of the defendant being told of the charges in the indictment and of the defendant's entry of a plea (not guilty). The case is then assigned to a district judge for motions and trial setting.
8) Motions
Motions are simply requests for the judge to do something. The most common motions are for:
Discovery, where the defendant is asking the judge to order the prosecutor to turn over discovery as required by law;
A motion to suppress statements of the defendant because of Miranda violations or the coercion of the statements;
A motion to suppress evidence due to an illegal search or seizure of that evidence;
A motion to sever the defendant's case from the case against other codefendants being tried with him or to obtain a separate trial of some of the charges against the defendant.
Other common motions ask the court to exclude or include certain evidence under the rules of evidence.
9) Discovery
The laws and rules in this area are always in a little flux. Generally, a defendant is absolutely entitled to receive a copy of any oral or written statements he/she allegedly made to agents, tangible objects, scientific tests OR reports which the prosecutor intends to use in evidence, and witness statements which are usually contained in reports of investigation filled out by the arresting agents. Some discovery should be turned over to the defendant well before trial, but some material, such as the witness statements, is not required to be turned over until after that witness testifies.
A defendant is entitled under the due process clause of the constitution to have the government turn over any evidence in its possession which is exculpatory (that is, which tends to prove his or her innocence) as well as evidence which might cast doubt upon the credibility of government witnesses (such as inconsistent statements or evidence of bias or motive to fabricate).
10) Federal crimes trial
Pursuant to the fifth and sixth amendments to the U.S. Constitution, any person charged with a crime has:
-the right to a speedy and public trial by a jury selected from the community;
-the right to have the trial take place in the community wherein the offense occurred;
-the right to have the government prove all elements of the crime beyond a reasonable doubt;
-the right to subpoena persons at no cost to testify on your behalf and the right to present evidence on your behalf (or no evidence if you so choose);
-the right to confront and cross examine witnesses against you, and
-the right to remain silent (or to testify if you so choose).
Because the government has the burden of proof, they go first, and present their evidence in the form of witnesses, documents and other physical objects. After the prosecutor questions the witnesses (known as direct examination), your federal crime attorney will have the right to question the witnesses (known as cross examination). After the prosecution has presented all its evidence, it will rest.
At that point, your federal crime attorney has the right to ask the judge to find that no reasonable jury could convict on the evidence presented by the government. If he or she agrees, he or she will enter a judgment of acquittal.
If the judge disagrees, you then have the right to present evidence (or to decline to do so). Once the defense rests, the government has the right to present a rebuttal to your evidence (if there was any).
Once the government rests its rebuttal case, the federal crime attorneys can present their closing arguments. The government goes first, then the defense; the government once again gets a chance to rebut the defense argument. The court will then instruct the jury on the law that applies to the case, and they will retire to deliberate their case in secret. They will either return a verdict of guilty (on some or all charges) or not guilty (on some or all charges).
If you are convicted on any charges, the net phase will be sentencing. If you are acquitted on all charges, you are free to go.
11) Federal crime sentencing
Being sentenced to jail in federal crime cases are determined by two things: (1) the statute of conviction, which sets the maximum penalty in the form of a fine or imprisonment; and (2) the federal crime sentencing guidelines.
The federal crime sentencing guidelines are a series of sentencing rules established by the U.S. Sentencing Commission. (See www.ussc.gov for more information.)
The federal system uses guidelines that rely upon a grid system known as the sentencing table. Each grid contains a range of custodial time (in months) which the judge is authorized to impose. Along the top axis are 6 criminal history categories.
A person's criminal history category is based upon the nature of his prior record. Some offenses count more then others. Some do not count at all based upon either the person's age or the nature of the offense. Points can be added if the person was on probation or parole when he committed the federal offense or if he was recently released from custody when he committed the federal offense. The lowest category, I, is for people with no record, the highest is VI, for people with lengthy records. The custody time increases along with the severity of your history.
Along the left side of the table is a listing of the offense levels. Each federal crime is assigned a point value. This value can be adjusted upwards or downwards based upon certain characteristics of the offense, the defendant's behavior, the victim's role and relationship to the defendant, whether the defendant played aggravating or mitigating role in the offense, and whether the defendant accepted responsibility.
Once the court has calculated the defendant's adjusted offense level and his or her criminal history category, a presumptive sentence range is determined. At that point, the judge is authorized to depart upwards or downwards from the presumptive range if he or she feels there are circumstances about the defendant or the crime that were not adequately considered by the guidelines. This decision whether or not to depart is subject to the court's discretion and cannot be reviewed on appeal, although the actual calculation for the presumptive guidelines range can be appealed.
12) Post sentencing
At that point, the defendant will ultimately be ordered to serve any custodial time ordered, with credit for any time served to date. There is no parole in the federal system, but if a person behaves well in custody, he or she can receive 15% credit for every year he is to serve. If the defendant is a citizen, he or she will spend the last 6 months in a halfway house. He or she will then be released, but will be on supervised release for a period of time set by the sentencing judge.
Supervised release is like probation, in that if you violate the terms (including committing a new offense) you can be returned to custody for up to the maximum of the term of supervised release. Unlike a sentence, you do not get any credit for the time you previously spent in custody. If you have been sentenced to jail, you should consult with an attorney in your area.
13) Appeal
If you are convicted, even if you pled guilty, you have the right to appeal
your case. A notice of appeal must be filed within 10 days after judgment
(your sentencing order) is entered, or you lose that right. An appeal
is an opportunity to tell the appellate court exactly how the judge did
not follow the law, or what rights you were denied. Typically, an appeal
will take 6 months to a year to be decided. While your case is on appeal,
it is unlikely that you will be released. You do not have an automatic
right to bail while appealing. You must inform your attorney immediately
after sentencing if you wish to appeal.
Examples
of federal crimes include:
1) Counterintelligence crimes including national security
threats and economic espionage;
2) Computer crimes including access device fraud (credit card and ATM
card fraud), computer fraud, injuring or damaging communication systems
operated or controlled by the United States or intended for use by military
or civil defense functions for the United States, interception of communications
(wire, oral or electronic), unauthorized access to stored communications
and disclosure of the contents of communications and customer records;
3) Crimes against children including child abductions, domestic and international
parental kidnappings, sexual exploitation of children, interstate transportation
of obscene material, online child pornography, physical/sexual abuse of
a child on a government reservation, National Sex Offender Registry matters
and violations of the Child Support Recovery Act;
4) Cyber crimes including criminal spam, phishing, spoofed or hijacked
accounts, international re-shipping schemes, Cyber-extortion, auction
fraud, credit card fraud, Intellectual Property Rights (IPR), Computer
Intrusions (hacking), economic espionage (theft of trade secrets), international
money laundering, identity theft, pirating (software, music and movies),
online child pornography and child exploitation and obscenity;
5) Federal civil rights violations including hate crimes, Color of Law/Police
Misconduct, Involuntary Servitude/Slavery (ISS) and Freedom of Access
to Clinic Entrances (FACE);
6) Gun crimes including possession of a firearm by a convicted felon,
possession by an illegal alien, and "unlicensed" possession
of a firearm that requires a license (for example, a machine gun);
7) Immigration crimes including illegal re-entry, smuggling illegal aliens,
harboring illegal aliens and immigration fraud;
8) Import and export crimes including smuggling Goods Into the United
States, entry of goods by means of false statements, importation or exportation
of stolen property, failure to declare imported goods to customs, aiding
unlawful importation and exportation of arms or munitions of war;
9) Indian Country crimes including guns, violent juveniles, drugs, domestic
violence, civil rights violations, environmental crimes, public corruption,
Indian Gaming Regulatory Act violations, American Indian Art Theft and
government fraud occurring in "Indian Country";
10) Major thefts like stealing art, jewelry and gems;
11) Organized crime, including Racketeer Influenced and Corrupt Organizations
Act (RICO), drug trafficking (drug cartel or drug kingpin) and crimes
involving well-entrenched organizations such as La Cosa Nostra and Italian
Organized Crime, Russian/Eurasian Organized Crime, Nigerian Criminal Enterprises,
and Asian Criminal Enterprises;
12) Public corruption crimes, which typically involve law enforcement
officers accepting money to protect or facilitate drug-trafficking and
organized criminal activity;
13) Tax crimes including tax evasion, tax fraud, and public corruption
tax crimes;
14) Violent crimes including child abduction or mysterious disappearance
of children, serial murders, single homicides, serial rapes, extortions,
threats, kidnappings, product tampering, arsons and bombings, weapons
of mass destruction, public corruption, and domestic and international
terrorism; and
15) White collar crimes, including antitrust, bankruptcy fraud, environmental
crime, financial institution fraud, governmental fraud, health care fraud,
Internet computer crime, insurance fraud, money laundering, securities
and commodities fraud and telemarketing fraud.
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