Federal Criminal Defense Lawyer
Types of Federal Crimes
There are many types of federal crimes that are charged in the Southern District of California. Most are smuggling related because we are so close to the San Ysidro Port of Entry. This can range from drug smuggling to alien smuggling. These are the most common federal charges. However, gun charges and white-collar offenses are becoming more apparent in the federal courts. The following are a list of other crimes that may be filed in federal court:
Antiracketeering; Antitrust; Assassination, Kidnapping, or Assaulting a Federal Officer; Bank Burglary; Bank Embezzlement; Bank Fraud; Bank Larceny; Bank Robbery; Bombing Matters; Bond Default; Bribery; Child Pornography; Computer Crimes; Counterfeit Crimes; Credit and/or Debt Card and Related Fraud; Crimes on Government Property; Crimes on Indian Reservations; Crimes within the Maritime Jurisdiction; Destruction of Aircraft or Motor Vehicles Used in Interstate Commerce; Domestic Security; Espionage; Extortion; Falsely Claiming Citizenship; False Entries in Records of Interstate Carriers; Federal Housing Administration Matters; Fraud Against the Government; Fraud by Wire; Government Property – Theft, Robbery, Embezzlement, Illegal Possession, and Destruction; Harboring; Impersonation – Identity Theft; Interception of Communications; Interstate Transportation of Gambling Devices; Interstate Transportation of Obscene Matter; Interstate Transportation of Stolen Motor Vehicle or Aircraft; Interstate Transportation of Stolen Property; Interstate Transmission of Wagering Information; Irregularities in Federal Penal Institutions; Kidnapping; Larceny; Mail Fraud; Narcotics Violations; Obscenity; Obstruction of Justice; Perjury; Sabotage; Sexual Exploitation of Children; Sports Bribery; Tax Evasion; Theft from Interstate Shipment; Violations of Federal Hate Crimes
Federal Crime v. State Crime
A federal crime is any violation of a United State statute that has been passed by Congress. The U.S. Attorney prosecutes federal crimes that address national concern. A state crime on the other hand, is a violation of an ordinance passed by state legislature. The District Attorney prosecutes state crimes that address local concern under the state’s penal code. These are the principle roles in a federal criminal case:
Reviews the evidence presented by the U.S. Attorney to decide whether there is probable cause to require a defendant to stand trial.
The prosecution represents the United States in bringing federal charges against a defendant.
Federal Criminal Defense Attorney
The defense represents a defendant at every stage of the federal criminal proceedings.
Agency responsible for monitoring defendants involved in the federal criminal justice process from the time of the defendant’s arrest until the case is scheduled for trial.
U.S. Probation Office
Agency responsible for supervising convicted felons from the time of their sentencing until the termination of probation or completion of community supervision.
Fourth Amendment Implications
The fourth amendment of the U.S. constitution establishes “the right of the people to be secure in their person, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by an oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.” Thereby guaranteeing all citizens the right to be free from unreasonable government searches and seizures of their persons, homes, businesses, and property. However, it is important that you understand that this fourth amendment right is limited for people facing charges in the federal criminal justice system. Effectively you waive your reasonable expectation of privacy and consent to searches and seizures by law enforcement agencies without a search warrant and without probable cause. The following are circumstance where a defendant in the federal criminal justice system will be required to sign a temporary Fourth Amendment Waiver as a condition of their release:
U.S. Pretrial Services
If you are a defendant in a federal criminal case who posts bail, you will be required to waive your fourth amendment right in order to be released to the custody of pretrial services pending your trial. This means that if at your bail hearing the judge determines that you are eligible to post bail, you may be released but will be subject to alternative detention options, searches and seizures by law enforcement, and must report to pretrial services in order to ensure your appearance at trial.
U.S. Probation Office
If you are a defendant who has been convicted of a federal criminal crime, as a felon you will be required to waive your fourth amendment right in order to released on probation. This means that under the supervision of probation officers, you will be subjected to substance abuse treatment programs and testing, searches and seizures by law enforcement, and must report to your probation officer to ensure compliance with the court’s conditions at sentencing. It is important to point out that the fourth amendment waiver remains valid until your probation period has been legally terminated, at which time your fourth amendment right to privacy resumes.
Burden of Proof in a Federal Criminal Case
The burden of proof in a criminal case is beyond a reasonable doubt. The burden lies on the government, this means that a defendant in a federal criminal case is not required to prove his or her innocence. Instead, the prosecution must prove beyond a reasonable doubt every single element under the penal code that a defendant has been charged under. This means that for a conviction in a federal criminal case, you must be found guilty beyond a reasonable doubt that you committed the offense. The responsibility of a criminal defense attorney in a federal criminal case is to hold the U.S. Attorney accountable to this standard.
Defendant’s Rights in a Federal Criminal Case
If you are defendant in a federal criminal case, you have the following substantial rights:
The right to plead not guilty;
The right to be tried by a jury;
The right to the assistance of counsel at every stage of the proceedings;
The right to confront and cross-examine the witnesses against you;
The right to call witnesses on your behalf; and
The right not to be compelled to incriminate yourself.
The Role of Pretrial Services
Every federal judicial district has pretrial services that are responsible for monitoring the defendant in the federal criminal justice process. You will first meet with pretrial services to be interviewed before your arraignment. The purpose of this interview is to determine if you are a good candidate for bail in order to reduce unnecessary pretrial detention. To make this determination, pretrial services will verify the following background information about you:
Prior criminal record;
Military record; and
Pretrial services will then prepare a report of its findings and present it to the judicial officer considering whether or not to set bail. If at your arraignment the judge decides to set bail in your case, you will be informed of the terms of your release and you will need to report to pretrial services. Pretrial services will monitor defendants released to their custody pending trial and help defendants on bail locate and use community services. In an effort to reduce crime by defendants released to the community pending federal criminal trials, pretrial services may subject a defendant to electronic monitoring and random drug testing. You will also be required to report periodically to your assigned pretrial services officer in order to ensure that you are present the day of your trial.
Arraignment in Federal Criminal Cases
The arraignment is the first hearing in a federal criminal case. Before your arraignment the judge will have reviewed your arrest and any post-arrest investigation reports. During the arraignment the judge will inform you of the charges the U.S. Attorney filed against you. At this point of the proceedings you will be asked to enter a plea to the charges. It is important that you always enter a plea of not guilty to the charges brought against you until you have received the discovery in your case. At your arraignment, the judge will also determine whether you should be held in jail until trial or bail may be posted. In deciding whether to set bail in a federal criminal case, a judge or magistrate will consider the following factors:
Your immigration status;
Your prior criminal history;
The severity of the crime you are charged with;
The alleged injury or threats to the victim to the crime charged;
The alleged use of a deadly weapon in the commission of the crime charged;
The alleged amounts of controlled substances involved in the commission of the crime;
The risk of you not making your scheduled court appearances; and
The danger you pose to the community.
Discovery in Federal Criminal Cases
Discovery is a paramount stage of the federal criminal justice process because it will determine the strategy for your defense. Generally, if you are facing federal criminal charges you have two defense options: to negotiate with the prosecution and enter into a plea agreement or to fight the charges against you and go to trial. You need to make an informed decision in order to be able to weigh the different outcomes and decide which defense strategy to engage. For this reason, you should never enter a guilty plea prior to having a federal criminal defense attorney review the discovery available in your case. Law enforcement agencies can recommend that charges be filed against you and the grand jury may find probable cause to charge you but you will not know how strong the U.S. attorney’s case actually is until you take a look at the evidence they have against you. Pursuant to Rule 16 of the Federal Rules of Criminal Procedure, a defendant is entitled, upon the request of the defense, to government disclosure of the following five types of information:
Defendant’s written or recorded statements in the possession, custody, or control of the government;
Defendant’s prior criminal record in the possession, custody, or control of the government;
Any documents and tangible objects that are material to the defense, are intended for use during the government’s case-in-chief, or belong the defendant and are in the possession, custody, or control of the government;
Examination and test reports that are material to the defense or are intended for use during the government’s case-in-chief and are in the possession, custody, or control of the government; and
A written summary of expert testimony that the government intends to use during its case-in-chief.
Federal Sentencing Guidelines
If a defendant pleads guilty to a federal criminal offense or is convicted at trial, chances are the defendant’s sentence will not be imposed within the same hearing. Instead, the trial judge will schedule a sentencing hearing weeks out to give probation services enough time to conduct an investigation and prepare a presentence report. Before the sentencing date, the court will review the evidence that was admitted at trial, the presentence report that was prepared by probation services, and any relevant information provided by the U.S. attorney and the defense criminal attorney. In determining what sentence to impose, federal judges are required to consider the U. S. Sentencing Commission Guidelines. These federal sentencing guidelines provide a set of uniform sentencing ranges for federal judges to consult when imposing sentences for felonies and serious misdemeanors in the federal criminal courts system.
Determining the Base Offense Level
The way that the federal sentencing guidelines work is that federal crimes are assigned to an offense level based on the seriousness of the offense, there are a total of 43 offense levels. Then, according to the defendant’s particular characteristics and the offense’s specific characteristics, the base offense level may increase or decrease. Lastly, the base offense level may decrease by two levels or three levels if the court finds that the defendant accepted responsibility for the offense. To qualify for a 2-level reduction the court must find that the defendant pled guilty, truthfully admitting to the role played in the offense and if applicable, restitution was made prior to defendant’s conviction. In addition to these findings, upon the motion of the government, defendants with an offense level greater than 15 may qualify for an additional 1-level reduction if they enter into a plea deal with the government.
Determining the Criminal History Category
Once the base offense level for the crime has been determined, the court must determine the defendant’s criminal history category. There are a total of 6 criminal history categories ranging from least serious to most serious. Defendants are assigned to each criminal history category based on the extent of their criminal history and how recent their priors are to the current offense.
Determining the Offender’s Guideline Range
To determine the offender’s recommended guideline range, the court will look at the U.S. Sentencing Commission’s sentencing table for the point at which the offense level and criminal history category intersect. That point should fall within one of the following four sentencing zones in the sentencing table:
The recommended sentencing range is 0-6 months in prison.
The defendant is eligible for federal probation.
The recommended sentencing range is 4-15 months in prison.
The defendant must serve at least one month of the sentence in prison but is then eligible for federal probation by intermittent confinement, community confinement, or home detention.
The recommended sentencing range is 10-18 months in prison.
The defendant is eligible for a split sentence, must serve at least half of the sentence in prison.
The recommended sentencing range is 15 months to life in prison.
Safety Valve in Federal Criminal Firearms or Drug Cases
The federal sentencing guidelines require mandatory minimum sentences be applied automatically for federal offenses involving carrying a loaded firearm, brandishing a firearm and controlled substances. In an effort to prevent prison overcrowding and ensure that defendants’ sentences fit their offenses, Congress created safety valves to allow federal judges to impose sentences below the mandatory minimum. However, in order for a safety valve to be applied the following five requirements must be met:
No one was harmed during the offense;
The defendant has little or no history of criminal convictions;
The defendant did not use violence or a gun;
The defendant was not a leader or organizer of the offense; and
The defendant told the government everything he or she knew about the defense.
If the court finds that you meet all five requirements under the safety valve, the federal judge will be allowed to sentence you below the mandatory minimum sentence imposed by the U.S. Sentencing Commission Guidelines.
Fast Track Departures in Federal Criminal Immigration Cases
Fast track departure is a program created by the United States congress to deal with the problem of overcrowded federal courts and save the government the time and resources required to put on a federal criminal case. In essence, it is an early disposition program that allows for the expedited processing of federal criminal immigration cases. The way that fast track cases operate is that a defendant facing criminal immigration charges will enter into a plea agreement in exchange for a sentence reduction offer by the U.S. Attorney. It is important to point out that when entering a plea of guilty, the defendant’s immigration status with Immigration and Customs Enforcement may be affected. This means that the defendant may be subjected to administrative removal or deportation from the United States.
In addition to entering a guilty plea, defendants in federal criminal immigration cases will be required to knowingly and voluntarily waive the following specific rights in order to into enter a fast track agreement:
The right to a pre-sentence investigation;
The right to pretrial motions;
The right to argue at sentencing further reductions, departures, adjustments, or variances;
The right to appeal the conviction and sentence in the case;
The right to attack the sentence in any post-conviction proceeding.
Once you enter into a fast track agreement, the United States Probation Office will prepare
It is imperative that you understand that fast track departures in federal criminal immigration cases are discretionary. This means that if you enter into a fast track agreement and a joint request is made to the court for fast track departure, the court is not bound to accept the terms of the plea agreement. It is entirely up to the judge’s discretion whether to grant it. However, if the judge rejects the fast track agreement, you will be given the opportunity to withdraw your guilty plea and proceed to trial.