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Silver Spring, Maryland, 20910
 
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Federal Criminal Process

Federal Criminal Process
Federal Prosecution Jurisdiction

A. Federal Cases

Federal criminal cases are the result of Indictments in federal court for a “federal crime” that has by nature a federal connection or element that provides the basis for the case going to federal court. An example would be a fraud of a bank or other financial institution whose deposits are insured by a federally backed agency or corporation.

Also, cases can become federal Indictments if the alleged crime occurred on federal property, or if the allegations include a travel or transportation of some sort between states or internationally. An example here could be Interstate Transportation (of monies obtained illegally) in Aid of Racketeering.

Federal criminal cases are indicted after an investigation by a federal agency or after local law enforcement officers submit the results of an investigation to the United States Attorney’s Office (federal prosecutor’s office). The United States Attorney’s Office is a field office of the U.S. Department of Justice in Washington, D.C. Federal Agencies investigates crimes that have federal jurisdiction, and these agencies confer with the U.S. Attorney’s Office and conduct grand jury investigations with the U.S. Attorney’s Office.

Traditionally, federal indictments returned by grand juries consisted of, and still do consist largely of, complex fraud cases (“white-collar crime”) and significant drug trafficking cases.

B. Crimes

Often, federal cases either fall into the categories of large white-collar crimes (frauds) or large drug-trafficking cases. Most federal criminal cases are prosecuted under Title 18 of the United States Code (which contains most of the crimes with federal jurisdiction other than drug cases), or under Title 21 of the United States Code (the controlled substances statutes [“drug” statutes]).

Title 21 contains the criminal statutes against drug possession, drug trafficking, and drug manufacture. Title 21, United States Code, also contains statutes prohibiting activities such as maintaining a house where controlled substances are kept or sold, and using a communication facility or device to further a Title 21 drug crime.

Other federal crimes are dispersed throughout Title 18, and there are many different types of federal crimes, but these cases are not as frequently prosecuted as fraud cases, or significant drug cases. Examples of these other federal crimes are extortion, bribery, public corruption, counterfeit currency cases, and immigration law violations.

Other cases for which federal Indictments are returned are tax cases, such as tax evasion and failure to file taxes. Federal criminal tax violations are found in Title 26 of the United States Code. Also, occasionally, securities fraud cases are prosecuted, which are violations of securities fraud statutes in Title 15 of the United States Code.

II. FEDERAL INVESTIGATIONS

A. Corporate Documentation & Audit

A person who is under investigation by a federal agency and the United States Attorney’s Office for an allegation of criminal activity is classified as in one of two categories. Pursuant to U.S. Department of Justice policy, when the allegation and early investigation reveals that evidence exists that could result in an Indictment, then such a person is considered a “target” of the investigation.

When the initial allegations and early investigation reveal that it is unclear, yet the evidence suggests that a person may become a target, then that person is considered a “subject” of the investigation. Otherwise, a person is merely a potential witness.

Often, until an investigation progresses, the prosecutor and agents cannot distinguish between these classifications, which results in targets, subjects and witnesses all obtaining criminal defense counsel to represent them during the investigation.

B. Agencies

Although most people are familiar with the existence of the Federal Bureau of Investigation (FBI), many other federal agencies exist to investigate and assist in prosecuting federal crimes. Agents of the U.S. Postal Inspection Service (U.S. Postal Inspectors) are authorized to investigate criminal activity that utilizes or affects the United States mail. Such activities are often drugs sent through the mail, pornography sent via the mail, and fraud schemes that utilize the U.S. mail or commercial mail carriers.

The Drug Enforcement Administration (DEA) is authorized to investigate Title 21, U.S. Code, violations, such as drug trafficking, possession of controlled substances (drugs) with intent to distribute, and drug manufacturing. The Bureau of Alcohol, Tobacco and Firearms (ATF) investigates illegal firearms possessions, sales and transfers. The ATF also investigates illegal explosive device possessions, as well as violations of tobacco and alcohol sales.

III. INDICTMENT AND GRAND JURY

A. Grand Jury

Grand juries in federal investigations are considered a weapon of the prosecutor, as an investigation is often considered to be pro-active. In being pro-active, the federal prosecutor may make various presentations of evidence to a federal grand jury before he submits a proposed Indictment for the grand jury to return. This way, the grand jury can digest the evidence, which may be somewhat voluminous, as opposed to hearing it for one time at the same that an Indictment is being submitted for the grand jury’s consideration.

Grand juries vote on the “return” of an Indictment, that is, to make the allegations in a proposed Indictment official. The standard, or burden of proof, to return an Indictment is probable cause to believe that a crime was committed, which is a low burden of proof. Grand jury members are not concerned with whether the proposed defendants are guilty or not. A federal grand jury is composed of 16 – 23 citizens, and an indictment will be returned if at least 12 of the members concur that probable cause has been established. Grand juries are governed by Rule 6, Federal Rules of Criminal Procedure.

B. Indictment

A federal Indictment is the charging document which formally makes the allegations against the defendant(s). The United States Attorney’s Office will use the Indictment to “bring its case” against a person, and the prosecutor will have to prove the elements of the crimes listed in the Indictment. The Indictment is supposed to contain a statement of the facts constituting the offense, and for each count (charge) the Indictment must list the citation of the relevant statute. Indictments are governed by Rule 7, Federal Rules of Criminal Procedure.

Grand jury proceedings are “secret” and only those allowed, besides the grand jury members, are the attorney for the government, the court reporter, and witnesses (and interpreters if necessary). Title 18, United States Code, Section 1504 makes it a federal crime to communicate with a federal grand jury regarding an official matter with the intent to influence the grand jury. Therefore, an Indictment may be returned with little or no notice to the defendant.

IV. Arrest & Detention

A. Arrest

When a person is arrested after the return of a federal Indictment, he/she is taken before a United States Magistrate Judge for an initial appearance. An initial appearance is designed to apprise the defendant of the charges against him/her, and to address whether or not the government will seek to detain the defendant without bail.

B. Detention

A defendant is entitled to a detention hearing if the government (U.S. Attorney’s Office) moves the court at the initial appearance to detain the defendant without bond. A defendant is entitled to a hearing on the issue of bond/bail, and this hearing is usually held about three (3) to five (5) days after the initial appearance.

C. Rebuttable Presumption

Often in controlled substances cases (drug cases), federal defendants are detained without bond, even if they have no prior criminal history and they did not engage in violence. This is due to the fact that in the federal system, regarding detention in drug cases, when as potential sentence, that is, a criminal penalty, is ten (10) years or more, a rebuttable presumption exists. This rebuttable presumption presumes that a defendant who is potentially facing ten (10) or more years should not be detained, unless that defendant can convince the court that he should indeed be given a bond. In the case of a rebuttable presumption, the burden of proof regarding the bond issue shifts to the defendant who must show the court why he should not be detained without bond.

D. Reasons for Detention

A defendant can be detained without bond if the defendant is deemed to be either 1) a “flight risk” or 2) a danger to the community. The particulars of these reasons can be found in Title 18, U.S. Code, Section 3142.

E. Personal Recognizance

A defendant may be released on his or her own recognizance, that is, his/her promise to appear as directed by the court. These “PR bonds” are often given to defendants who have no criminal history and no violence if the case does not involve a large white-collar crime or significant drug trafficking case.

V. Negotiations & Sentencing Guidelines

A. Charge Bargaining and Sentencing Agreements

There are two (2) types of plea negotiations in the federal criminal system, although due to the existence of the U.S. Sentencing Guidelines as discussed below, theoretically, there is no true “plea negotiation.” However, these two types of bargaining still exist and can be used by an attorney with federal experience.

Charge bargaining is just what is says – a pre-Indictment bargaining of the charge to which a defendant will plead. Charge bargaining can produce a reduced sentencing guideline range, as it could involve a charge that is not dollar amount driven or that carries a statutory “cap” of incarceration time. An example of such a cap would be a five (5) year maximum penalty, where the U.S.S.G. yields a level higher than the five years.

Sentencing agreements can be in various forms, such as: 1) an agreement to no oppose the defendant’s arguments for a certain sentence; 2) the government’s agreement to recommend a certain sentence, pursuant to Rule 11(c)(1)(B), Federal Rules of Criminal Procedure; and the government’s agreeing to a certain sentence, pursuant to Rule 11(c)(1)(C), Federal Rules of Criminal Procedure. This not an exhaustive list, but these examples of sentencing agreements are practical and sometimes are found in federal criminal case negotiations.

B. U.S. Sentencing Guidelines

The U.S. Sentencing Guidelines (“U.S.S.G.”), established through the U.S. Sentencing Guidelines Commission, governs a sentence in federal criminal cases. Although the U.S. Supreme Court has held that the U.S.S.G. are not now mandatory, they are however “advisory” and thus, are followed in the vast majority of sentences. In those sentences where the courts depart from the U.S.S.G. sentencing range of punishment, the sentence is based upon cooperation with the government, and/or unique and personal factors that the court is supposed to consider pursuant to Title 18, United States Code, Section 3553(a).

The U.S.S.G. functions like a point system, adding points for higher amounts of drugs, or dollar amounts in fraud cases, and further adding points for enhancements such as organizer/leader, abuse of a position of trust or special skills, or use of a firearm. A defendant can get points subtracted, the most common being for acceptance of responsibility and minor/minimal participant. Once the net point level is determined, then a sentencing table chart will reflect the range of incarceration. Also, a criminal history can increase the range of incarceration.

C. RELEVANT CONDUCT

A very real concern of federal defendants at sentencing, especially in drug cases and fraud cases, is the provision within the U.S.S.G. known as relevant conduct. Relevant conduct is evidence of similar conduct to that in the federal Indictment that is not charged, which is used to increase the amount of controlled substances for U.S.S.G. calculations, or to increase the total dollar amount in a white-collar crime case. If a defendant is convicted, regardless if by a plea of guilty or at trial, relevant conduct could potentially be used to increase a U.S.S.G. level, and the burden of proof for sentencing purposes is less than that at trial. In other words, even though the burden of proof at trial is beyond a reasonable doubt, for U.S.S.G. levels and related enhancements, the burden is less.

Relevant conduct cannot, in theory, be bargained away, unless a defendant agrees prior to indictment to a particular sentence.

D. DOWNWARD DEPARTURE AND SENTENCE REDUCTION

A common way that a defendant can reduce his sentence upon a plea of guilty, or even after conviction at trial, is by the court granting a downward departure motion, or after sentencing, by a sentence reduction motion. A downward departure motion is usually granted after a defendant cooperates substantially with the government and earns the motion.

A sentence reduction motion operates the same way, except that it can be filed up to one (1) year after sentencing.

VI. Trial

A. FEDERAL CRIMINAL CASE

Federal criminal case trials are conducted before U.S. District Judges, and unless otherwise agreed to by the parties, are tried before a jury. The U.S. Attorney’s Office counsel (Assistant U.S. Attorney) represents the government and prosecutes the case, and the defendant’s attorney (defense counsel) represents the defendant. Federal criminal trials are governed by the Federal Rules of Evidence and the Federal Rules of Criminal Procedure in Title 18, United States Code.

If a defendant is acquitted (found not guilty), then he is released and his bond is exonerated. If a defendant is found guilty, then he may be held in custody until his sentencing, or he may be released pending sentencing if no factors have changed regarding his status as a danger to the community or a flight risk. The exception to this is that in significant drug cases, a conviction dictates that the defendant be incarcerated immediately.

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