At the Federal Criminal Law Center, we handle all of the following types of cases:
- Drug charges, including possession, distribution, trafficking and manufacturing
- Drug conspiracy
- Medical fraud
- Fraud conspiracies
- White-collar crimes
- Wire fraud
- Mail fraud
- Tax fraud
- Mortgage fraud
- Money laundering
- Internet sex crimes
- Computer fraud
- Child pornography
- Bank robbery
- Embezzlement and corporate theft
- Immigration crimes
1. WHAT HAPPENS AFTER YOU ARE ARRESTED BY THE FEDERAL GOVERNMENT AND INDICTED?
The first step is to find an experienced criminal defense attorney to represent you. The second step is to decide, based on the evidence, whether you want to go to trial or work out a resolution of your case in some other form.
The pretrial process is important. The first thing you want to consider is if you are eligible for bond pending disposition of your case. The second step is to file motions for discovery and special information requesting search warrant documents, if they apply in your case, in order to see whether any of these can be attacked. Obtaining as much evidence as possible before your case progresses helps a defendant to decide what is in their best interest. Evidence concerning search warrants is one of the most litigated parts of the pretrial process and is known as a suppression hearing. The Fourth Amendment protects you from unreasonable search and seizure in your car, on your person, in your home, business, and other places where elements of the crime might be located. The government must follow specific procedures in exercising the authority to search by probable cause or exigent circumstances or to obtain a warrant. All of this information is helpful in determining whether you can attack the government’s conduct on search and seizure issues.
There are several types of pretrial motions that can be filed including pre-indictment delays, statute of limitations, request for a bill of particulars, general discovery or what evidence the government will have against you, speedy trial violations, sufficiency of the indictment based on inadequate information and notice of the charges and penalties, and duplicity.
There are other creative pretrial motions such as motions to limit the government’s use of certain evidence such as 404(b) evidence. 404(b) evidence includes prior criminal acts to be used at the trial against you or to enhance your sentence. Many of these items can be attacked in the pretrial process in an attempt not to use them to bolster the government’s case or ability to convict you. Your prior convictions are discoverable along with those of other defendants who are going to be testifying against you. The identity of informants and witnesses against you is important and is part of the discovery process.
There are three cases that dictate how discovery is determined. For example, the Jencks Act provides a criminal defendant the right to obtain certain types of statements of a government witness but only after the witness has testified in the government’s case in chief. See 18 U.S.C. 3500. Other information under Brady v. Maryland 373 U.S. 83, 83 S.Ct. 1194 (1963) allows defendants the right to exculpatory evidence prior to trial and it is the prosecutors who decide whether an item is material and exculpatory (favorable) and thus qualifies for disclosure. Not every jurisdiction has the same rules governing the timing of disclosure but disclosure is eventually required if you decide to take the case to trial.
If your case goes to trial you have the right to confront witnesses against you. This means all witnesses and this may also apply to any sentencing proceedings. See Crawford v. Washington, 541 U.S. 36, 50, 124 S.Ct. 1359 (2004). It is important to get an attorney who is well-versed in how to direct your case depending on discovery information and to determine what pretrial motions are appropriate.
2. HOW DO I CHOOSE A GOOD LAWYER?
There are many lawyers who practice federal criminal defense work. Some are expensive and some are inexpensive. The key in making a good choice in hiring a federal criminal defense lawyer is to determine their experience level and balance that against the backdrop of the costs involved. A fair price for services is not going to be cheap in federal criminal defense work. Many lawyers say they practice federal law but have only done a few cases. You need to know how many cases have actually been done by that lawyer and what their experience is, not only with federal criminal defense litigation but Federal Sentencing Guidelines and sentencing mitigation should you be convicted of a crime. Most cases are resolved through plea bargaining and it is important to understand your attorney’s experience not only in the litigation process in protecting your case for pretrial and trial purposes but also for the possibility that a plea agreement might be the only alternative. It is also important to get along with your attorney and know that your attorney is not making you promises they cannot fulfill simply to be retained. A good attorney will tell you the truth about the federal system, about the guidelines, and be aggressive in using what evidence they can to help you overcome any charge at trial or mitigate the outcome of a conviction or plea.
3. WHAT IF I AM CHARGED WITH A DRUG CONSPIRACY WITHOUT ANY DRUGS?
Many defendants are charged with conspiracy. This is an easy crime for the government to prove as it only requires an agreement between the parties to perform a particular act in the furtherance of that agreement.
The essence of conspiracy is the agreement to commit an illegal act. Iannelli v. United States, 420 U.S. 770, 43 L.Ed.2d 616, 95 S.Ct. 1284 (1975); United States v. Snider, 720 F.2d 985 (8th Cir. 1983), cert. denied, 465 U.S. 1107, 80 L.Ed.2d 142, 104 S.Ct. 1613 (1984). The agreement must be between two or more persons. United States v. Moss, 591 F.2d 428 (8th Cir. 1979). A government agent or informant cannot be the only other member of the conspiracy. See, e.g., United States v. Mahkimetas, 991 F.2d 379, 383 (7th Cir. 1993) (joining nine other circuits, the court noted that a conspiracy "may be formed between a criminally-motivated person and a government agent or informer"); Montgomery v. United States, 853 F.2d 83 (2nd Cir. 1988); United States v. Escobar de Bright, 742 F.2d 1196 (9th Cir. 1984). United States v. Shabani, 63 U.S.L.W. 4001 (U.S. Nov. 1, 1994) (a federal drug conspiracy in violation of 21 U.S.C. 846 does not require that any co-conspirator commit an overt act). If the statute requires an overt act and there is none, an essential element of this claimed conspiracy is missing and Rule 80(d)(2)(E) would not apply. United States v. Soto, 716 F.2d 989 (2nd Cir. 1983) (mere presence, even with knowledge that a crime is being committed there, is not sufficient to establish that defendant was a member of the conspiracy). Single acts, without more, are also insufficient to link a defendant to a conspiracy. United States v. Rivera-Santiago, 872 F.2d 1073 (1st Cir. 1989). See also United States v. Arvanitis, 902 F.2d 489 (7th Cir. 1990) (statement by one of the RICO conspirators was improperly admitted against the defendant because proof that the defendant was a purchaser of the RICO conspiracy's services was not sufficient to establish the defendant's participation in that conspiracy); United States v. DeNoia, 451 F.2d 979 (2nd Cir. 1971) (mere delivery of heroin to an alleged co-conspirator while carrying a firearm was not enough to convict for conspiracy).
4. IF I AM CHARGED WITH MONEY LAUNDERING AND WITH ANOTHER CRIME, WHICH ONE TAKES PRECEDENCE?
If you are charged with a drug crime, frequently those drugs result in the government’s allegations that money was obtained from the illegal drug transactions. If you are charged with a fraud crime, the government will allege that the fraud created a certain financial windfall for you to which you were not entitled. Either way, the money that you received from any illegal activity is subject to not only forfeiture but can be identified as money laundering in that you received the money from an illegal activity and used that money for other purposes in order to hide the source of the money.
Money laundering carries separate offense classifications as well as penalties under the sentencing guidelines.
5. WHAT IF I DECIDE TO COOPERATE?
Cooperation is a slippery slope and you must be careful in how you initiate any cooperation efforts with the government. If it is a choice you have to make, then it is important to establish the reality of doing so at the earliest stage of your case. The sooner this decision is made the more helpful it can be, particularly if you have information the government needs in order to continue to prosecute other defendants in your case. This is an uncomfortable subject but is one that needs to be discussed. In our efforts to continue to be honest with our clients, we do not want to eliminate this option as a choice that you can make to determine the outcome of your case.
6. IF I TAKE A PLEA AGREEMENT WILL I BE CHARGED WITH MORE CRIMES THAN I PLED GUILTY TO?
Oftentimes indictments have multiple counts in them. A plea agreement can be offered to plead guilty to one or more counts in the indictment and to have the other counts dismissed. This agreement does not eliminate the effect those other counts will have on the sentence to be imposed unless a binding plea or a more restricted plea under the Federal Sentencing Guidelines is developed. This is one of those areas where you need to be sure that your attorney is experienced and understands the interplay among the plea agreement, the indictment, and how the sentence would be imposed. Many clients have come to us disappointed and upset because they pled guilty to one count but were sentenced on information related to all of the counts in the indictment. This is called relevant conduct and is difficult to eliminate from the plea bargaining process without specific terms and conditions applied to the agreement as well as in the sentencing arguments.
7. WHAT IF I AM CONVICTED, WHAT ARE MY OPTIONS?
If you are convicted by a trial you have the right to appeal your case to the Court of Appeals in the circuit in which your district court resides. There are eleven circuit courts of appeal not including the District of Columbia which is its own circuit court.
Taking an appeal is an important step in challenging pretrial, trial, and post-trial matters that were raised by your attorney through pretrial pleadings, trial and sentencing objections, and sentencing mitigation memorandums. An appeal can overturn a conviction or the sentence. This is an important step you should exercise in all cases where you went to trial or did not waive your appeal rights.
If the appeal is not successful, you have the right to go to the Supreme Court within 90 days of the applicable appellate court decision. Challenging a case in the Supreme Court is difficult and requires a unique question of law that the justices could consider and could affect other defendants throughout the criminal justice system.
Finally, if none of this works, there is always the habeas corpus petition pursuant to 28 U.S.C. 2255 which attacks your conviction and sentence pursuant to ineffective assistance of counsel claims. Ineffective assistance of counsel claims must include not only that your attorney made an error but that the error changed the outcome of your case and but for that error, a different decision would have been made by the court. See Strickland v. Washington.
8. WHAT DO I DO IF I AM FOUND GUILTY OR PLEAD GUILTY?
The court will review a Pre-Sentence Report (PSR) that will be prepared by a United States Probation Officer (USPO). You will be interviewed for this report by the USPO. I always recommend you have your attorney present for this interview and decide before speaking to the USPO if you are going to make a statement about your criminal conduct. I prefer to defer this to a written statement. The statement regarding your offense is usually most effective if you plead guilty. This can give you some points off of the Federal Sentencing guidelines and is called acceptance of responsibility. (See United States Sentencing Guideline Manual Section 3E1.1). In most cases if you are convicted by trial you do not want to discuss your offense with the probation officer.
In preparing for sentencing you and your attorney should discuss the guidelines;
- Start calculating the guidelines or estimate what they may involve before trial.
- Discuss the legal, technical and personal issues that affect the outcome of the guidelines and what downward departures might help mitigate the guidelines or sentence.
- Identify and areas of guideline departures or other factors not related in the guidelines pursuant to U.S. v Booker and 18 U.S.C 3553.
- The guidelines are not mandatory but they are where the court will begin considering the sentence to impose. It is not easy to get a departure so start your guideline and sentencing strategy early.