Criminal Defense in Federal Court

"What if I am being investigated for or charged with a federal offense?"
Being investigated for or charged with a federal crime is a terrifying, humiliating, and embarrassing event. We all know that sentences in federal court are severe and longer than comparable cases in state court. Because our laws are written by politicians, many of whom are former federal or state prosecutors, the laws always favor the government. Politicians get re-elected by supporting "tough on crime" legislation. Our civil liberties are constantly being eroded.

Our attorneys understand the complex federal system and know how to work within it. Our attorneys are known for being aggressive, thorough, and decisive. Our proven strategies have worked time and again.

The lawyers at Erker, Norton, & Hare believe that one of the keys to a successful defense is having an informed client. For this reason, we present a general overview of the federal system.

Initially, it is important to understand that the federal system is often a sentencing system. Criminal defendants in this country are presumed innocent until proven guilty. Unfortunately, many jurors tend to look at the equation in the opposite fashion. Realistically, once the United States government charges you with a crime, you are presumed guilty unless and until you can prove yourself innocent. In federal cases, federal agents and prosecutors are not under the same time constraints as in state prosecutions. Federal agents tend to wait until they have an "airtight" case, usually by having confidential informants working the inside. In addition, federal investigators employ extensive surveillance, wire taps, and other sophisticated means of obtaining evidence typically not seen in state cases. As a result, most federal cases are relatively easy for the prosecutor, and guilt is presumed. The real question is the length of the sentence.

The Investigation:
Federal investigations are unpredictable. Sometimes the first time you learn that you are being investigated is when you are charged. Commonly, however, federal agents will visit you to get a statement. Prosecutors know that the strongest evidence is typically the words of the accused. If you are approached by an agent, immediately invoke your right and ask to speak with a lawyer. This should end questioning. Federal agents have extensive training on eliciting incriminating statements. They are also trained to stop questioning when a suspect clearly and unequivocally invokes his right to counsel. Accordingly, you must invoke your right to speak with your lawyer. Then you should immediately contact an attorney. Our attorneys have extensive experience advising clients in this situation. We have been successful in preventing any charge whatsoever in some cases, and in others, influencing how the case is eventually charged.

The Charges:
All offenses against the United States are found in the United States Code. These laws are commonly referred to as the statutes. Just as a state legislature passes laws, the United States Congress enacts statutes to be the laws used in the federal courts. For many charges, the punishment upon conviction is found in the actual statute itself. This is typically some range of years. Once the range is established, the specific punishment upon conviction is then determined by the United States Sentencing Guidelines. Sentencing guidelines were first published by the United States Sentencing Commission in 1987 in order to give certain crimes uniform sentences. The idea was that many criminal defendants with the same charges were getting vastly different sentences. Congress gave authority to the United States Sentencing Commission to investigate and make recommendations as to uniform sentences for certain crimes. As you may have heard, these sentencing guidelines are very punitive in nature and call for lengthy sentences, particularly in drug cases. The guidelines are extremely complex and can be quite difficult to understand.

The Charges Get Filed:
There are a couple of ways that a case gets filed. First, a federal agent may approach a magistrate judge with a sworn affidavit accusing someone of a crime. If the magistrate judge believes that probable cause exists to believe that the accused committed the crime, he or she may sign the Complaint and issue an arrest warrant. The Complaint is typically used in cases where government wants your immediate arrest and detention. The prosecutor can also file a similar document called an Information. If the case proceeds by way of an Information or a Complaint, the accused is entitled to a preliminary hearing. At the preliminary hearing, the burden is on the prosecution to put on evidence sufficient for the judge to find probable cause that a felony was committed and that the accused could have committed it. This is a very low burden of proof and the accused should make a decision on whether or not to have such a hearing with the advice of counsel.

The final way to be charged is by way of an Indictment. The Indictment lists all of the charges and it is sworn to by the head of the Grand Jury. This is a secret group of people who have reviewed the government's evidence and decided whether or not there is probable cause to charge. In cases where an Indictment is issued, the accused is not entitled to a preliminary hearing. Commonly, a case begins with the filing of a Complaint. Following the preliminary hearing, the government will seek an Indictment. The next step is disposition: trial or plea.

Bond:
Upon arrest, the accused learns whether the government has filed a motion to detain them pending trial. Typically, the accused would be arrested by the officers investigating the case or the United States Marshals and transported to a federal holding facility. The accused is entitled to an immediate hearing, notified of the charges, and given a chance to seek bond. The latest figures from the Department of Justice show that 52% of those charged have a pretrial detention hearing. Of those, 75% of those with a hearing are ordered detained.

Once arrested, the accused will immediately have a meeting with a pretrial services officer who will conduct a quick background investigation and provide a report to the judge with recommendations for whether or not you should receive bond. Any statements to the pretrial officer are very important and if possible, the accused should have the assistance of an attorney. Under no circumstances should the facts of the case be discussed with the pretrial services officer. Anything said can and will be used in court.

Options:
For an accused person, the first option is to plead not guilty and dispute all charges. Our firm has been very successful in trial. If you decide to fight the charges, a jury of 12 will decide whether you are innocent or guilty. If you are found not guilty, the case is over. If you are found guilty, you will have a sentencing hearing sometime after the jury verdict. A presentence investigation report will be prepared by the probation office and provided to all of the parties prior to the sentencing date.

The second option is to plead guilty as charged to the court. Such a disposition does not involve any deal with the prosecutor. You are likely to receive a minimal reduction for acceptance of responsibility. While this is not usually recommended, it is sometimes the right course of action.

The third and final option if you are charged with a federal offense is to plead guilty and cooperate with the government. If you cooperate and provide "substantial assistance" to the government in the form of information, identification of other criminal actors, other conspiracies and even provide testimony, the prosecutor may agree to file a downward departure motion on your behalf which is commonly called a 5K1.1, 18 U.S.C. §3553 motion. The latest Bureau of Prisons statistics estimate that between one-third and one-half of all inmates in the Bureau of Prisons have reduced sentences due to such a motion being filed. This means that more than one-third to one-half of all criminal defendants agree to plead guilty and cooperate - - some get probation. The government will file such a motion if and only if substantial assistance is provided. To receive the prosecutor's help, you have to be completely truthful as well as provide information that can assist the government in a new prosecution, or in obtaining a conviction in a pending matter.

Departures:
The penalties described above are just the beginning of the sentencing process in the event that the person is convicted. In addition to the mandatory minimum guideline ranges, the court will consider departures - - upward and/or downward from the base level sentences. An example of some departures include whether there was any impact on the victim, an upward adjustment for obstruction of justice, a downward adjustment for acceptance of responsibility, specific offense characteristics, role in the offense, criminal history, upward adjustments, the impact of a plea agreement, and any cooperation. These adjustments can add or subtract from the base offense level as well as the counts on the criminal history score.

Why Time is of the Essence:
Once a person is accused in federal court, the speedy trial clock begins ticking. The government has a limited amount of time to get a person to trial. The length of time depends on whether the person is held without bond or not. If you want a trial, you must make the critical decision as to whether to assert your speedy trial rights - - quickly.

Additionally, federal prosecutions commonly charge more than one defendant. Because the statutory and guideline ranges are so punitive, most lawyers and their clients begin the case by trying to "cut a deal" and cooperate. Typically, the defendant who first hires a lawyer or the defendant who has the most to lose cooperates first and gets out first. The prosecutor usually will give a limited number of 5K1 motions. Thus, the defendants who have waited too long will be left out in the cold. Often, the least guilty person refuses to enter any type of cooperation agreement because of his/her minimal culpability. In the end, this person may receive more time than the actual ring-leader because of the ring-leader's cooperation.

For these reasons, it is critical to hire a lawyer who knows the system and who can guide you as to the best course of action quickly. Our lawyers have the type of experience necessary to help you make those decisions. The clock is ticking . . .

A Final Note:
If you are being investigated or have been charged by the government with a federal offense, you know that the case will have a major impact on the rest of your life. You only get one bite at the apple and so you must choose your attorney correctly the first time. A strong defense is certainly expensive, but the price is minimal compared to what the government wants you to pay. Our attorneys offer free initial consultations. Our results speak for themselves. If you have been charged or think you might be charged, the time to act is now.

top of page