Federal Criminal Defense

I’ve been representing people in federal criminal cases for over 23 years now, and I’ve handled hundreds of cases in federal district courts across the country. Most of the clients that come to us, really, they’ve never been through this process before. They’ve never had a federal criminal charge brought against them. So, I thought it might be helpful just to walk through the steps of what happens in a federal criminal case.

Now, the first step in any federal criminal case is going to be the investigation. And unlike a state case, where a police officer may pull someone over on the highway and investigate, search the car, find some drugs or contraband and arrest them, in federal cases, these investigations usually take a lot of time. So, you’ll see more of a proactive approach by federal agents than you see in the state police law enforcement agencies who investigate state cases.

The first step for a federal agent, once they’ve become aware of a potential crime, is they’re going to gather evidence. And that can be as simple as a couple of agents going up to a witness’s house, knocking on the door, and wanting to ask some questions. We call that a “knock and talk.” And we see that in almost every federal case. Sometimes, they’ll go talk to people who they think may be witnesses, and as they gather information, they may eventually come to the person who they think is a target or the potential defendant in the case, and want to ask that person questions.

We always tell our clients and their families to remember that if you get a knock on the door like that, you don’t have to talk to the agents. You have a right to ask for your lawyer and to talk with your lawyer before you agree to an interview. Remember, these agents are trained and they’re there to get information. So, they have a way of trying to get you to talk even if you don’t want to talk, but remember that you have rights and do not have to consent to an interview, and do not have to consent to a search just because agents come to your door. You’re not going to convince them to go away because you’re such a persuasive person.

Now, there’s another way, of course, that agents gather information during an investigation and that’s getting search warrants. Perhaps they have information that there are drugs in the particular house, or a business has files that may show evidence of fraud, they can go to a prosecutor, who will help them prepare an affidavit that they can then take to a federal judge. The judge will review that affidavit, and if there’s probable cause that a crime has been committed, or there’s evidence of a crime, then the judge will allow them to execute a search warrant. And they’ll execute that search warrant and try to gather as much evidence as possible.

We see search warrants not just in searching businesses or homes, but we also, especially these days, see a lot of search warrants for digital evidence, for computers files, for social media. Any type of evidence that a person may have that may be considered private, the government will often try to get access to that evidence through the use of a search warrant.

But there are other ways to conduct an investigation and to get evidence, and that includes wire taps and surveillance. We’ve seen many cases, not just in the drug area but also in public corruption, bribery investigations, in undercover transactions involving securities fraud. We see the government engaged in wire taps. And a lot like a search warrant, for the government to get a wire tap, they have to prepare an affidavit, a very detailed affidavit, and go in front of a judge, who gives them permission to do it. The rules are very specific about how they conduct these wire taps and what they do with that information.

So, anytime one of those is used in a case, your lawyer is going to want to review it very carefully to see if there’s a way to challenge it. And surveillance is also common in almost any federal case. Agents will set up and watch somebody, they’ll watch a house, they’ll watch a business. Sometimes they’ll take video evidence. In that case, an investigation like that will mean that the case can drag for a very long time while they’re gathering evidence. We’ve seen investigations that involve wire taps and surveillance last for many months, or even a year or more.

Now, of course, we also see federal agents involved in undercover operations, where an agent will act in an undercover capacity, they’ll pretend to be somebody that they’re not to try to convince someone, or to allow someone to engage in criminal conducts, so that they can record it, and ultimately report it and prosecute the person.

We, of course, see the government use informants, controlled informants, confidential informants. Sometimes people who are just trying to work off charges in their own case will agree to help the government in exchange for some sort of benefit, either financial, they’ll get money for it, or they’ll try to get a lower sentence. Now, those types of witnesses can sometimes jeopardize an investigation because they have their own agenda, but nonetheless, we see the federal government use them fairly often.

Finally, there are grand jury subpoenas. It’s very easy for a prosecutor to go to a grand jury and get a subpoena for documents or testimony that can then be presented to the grand jury when they’re trying to decide if they’re going to indict someone. Now, it’s important to remember about a grand jury investigation, that it’s a one-sided affair. It’s just the prosecutor show. The defense lawyer does not get to question those witnesses, can’t review the evidence, can’t make any arguments to the grand jury, so when the prosecutor wants to do something with the grand jury, they’re usually given pretty free reign. And if they wanna indict someone, they’re going to be able to get that indictment.

If you receive a grand jury subpoena, you wanna make sure that you’re not a target of that investigation. If you are, then, of course, you have certain rights, and you’re not going to want to show up in front of a grand jury and start answering questions about this investigation without having a lawyer involved, and making sure that it’s in your best interest.

Now, once the investigation is complete, then the government has to decide if they’re going to charge the person. And by making that decision, it can come through a grand jury indictment, or a prosecutor can make a decision very quickly and file a criminal complaint. But either way, the first step is usually somebody getting arrested. And that arrest usually will happen by federal agents and the person will be taken to a federal judge.

The first time the person appears in front of a federal judge, we call it the “initial appearance.” And basically, all that’s going to happen at that appearance is a magistrate judge will tell the person who’s been arrested what they’re charged with, what rights they have, and, of course, make sure that they have a lawyer. If the person does not have a lawyer at that initial appearance, and that happens many times because perhaps they weren’t aware that they’re going to be arrested, the court will appoint a lawyer just to handle that initial appearance, and then allow the person to go out and retain their own lawyer before they come back to court.

And in most federal cases, at this initial appearance, the person is going to be released on bond. The government will not object to a low bond. And in federal court, we usually see what we call “signature bonds,” where literally, the person who’s arrested just signs their name, promises to show up in court, and abide by certain conditions and they’re released that same day. But sometimes that’s not the case.

Sometimes, the government will wanna ask for a detention hearing. They will want the person to stay in custody without a bond until the case is over with. So, if the government asks for a detention hearing, the magistrate judge will give both sides a few days to prepare and to come back and present witnesses, or other evidence, trying to show that, from the government side, the person is a danger to the community, is a risk of flight, we shouldn’t let him out. And from the defense side, that he has ties to the community, he’s not a flight risk and not a danger to anyone, if he’s released. These detention hearings are incredibly important. So, if the government is asking that somebody be detained without bond, the lawyer, who’s representing that person, needs to make sure that they are very well prepared for that detention hearing to make sure their client can get out.

Now, after the client is released, you’re gonna start preparing for trial. And that means you’re going to go through the court process, you’re gonna be looking at the evidence, and you’re going to be making decisions all along the way about how best to defend the person.

The first step is reviewing the discovery material. Now, we call it “discovery,” and what it basically is is information that the government has about the case that they give to us. There are specific rules in federal court about what they are supposed to provide. Good lawyers will ask the government for specific items of evidence, any statements that the defendant made, any evidence relating to benefits they provided other witnesses, any searches they’ve conducted. All type of different evidence the government has to produce to the defendant early on in the case.

But you can’t stop there. Because even though the government is required to present evidence that’s not just favorable to their case, but favorable to the defendant’s case, sometimes it doesn’t happen. So, we found that it’s very important to conduct our own defense investigation of the charges. We need to talk to the witnesses. We need to review the evidence. We need to go out and inspect the scene. We have to do the same type of work that the government did way before this case was brought to court to make sure we know everything that they know, and hopefully more, about the case, so that we can effectively represent our client.

Now, our defense investigation is not just gonna involve efforts that we take, but our investigators will be talking to witnesses. We will consider experts in an appropriate case. We will do everything we need to do to counter the government’s evidence.

Filing motions is a critically important part of a federal case. In every case, there’s going to be some type of motion that you can file to push back against the government, to try to find out more about the case, to try to identify weaknesses in their case. And even if you don’t win the motion, many times you’ll get a hearing so that the lawyer can cross-examine the agent, ask them specific questions under oath that they can later use at trial. Some of the motions that we consider will be motions to dismiss. I filed one last month that was successful. Motions to suppress evidence. We’ve had many of those that were successful and have led to dismissal of charges before trial.

Many times, before trial, we’ll file what’s called “motions in limine” to either get the judge to allow us to bring in certain evidence or to exclude certain evidence prior to trial. Motions are critically important and they’re limited only by the imagination and creativity of the lawyer who’s handling the case.

Ultimately though, once you get through reviewing all the evidence, you know the case, you’ve had your motions’ hearings, you have to decide are you going to enter a guilty plea or are you going to trial?

Now, many lawyers will tell their clients, “Hey, it’s a federal case. You’re going to lose the trial. We need to work out a deal.” And unfortunately, many of those lawyers would say that before they have even done their job, before they have their homework and review the evidence and file the motions. In our experience, you don’t wanna ever enter a plea if you’re not truly guilty of the offense. You can win a federal criminal trial. I’ve won many federal criminal trails. So, don’t be afraid to take a case to a jury if you have not done what the government said that you did. Because many times, when they actually prepare that case in front of people and ask a jury to believe their version of the facts, doesn’t always happen the way that they want it to.

But there are cases where you’re going to want to engage in a plea discussion with the government, ultimately end up with a plea agreement. Perhaps, the government has a lot of evidence. You say, “Look, I did it. I just wanna minimize the amount of time I’m going to spend in custody.” And plea agreements are fine, but make sure you’re getting something in return for pleading guilty. I’ve seen far too many people in federal cases agree to plea agreements that really doesn’t give them any benefit at all. They had no need to enter the plea agreement. You can’t plead guilty without having an agreement with the government.

But sometimes these agreements can be very beneficial. Let’s say, you’re charged with an offense that carries a mandatory minimum. In a plea agreement, the government can agree to dismiss that mandatory minimum. The government can agree to make certain recommendations on how the federal sentencing guidelines apply to your case. The government can agree to specific sentencing recommendations. And in some cases, we’ve been able to get the government to agree to a binding plea, and you know exactly what sentence you’re going to get when you go in front of the judge. And that’s rare, but it does happen in some cases.

But you don’t have to enter a plea agreement. And if you’re not getting anything in return for it, don’t do it. Because many plea agreements, most plea agreements, also require the defendant to waive certain rights. No right to appeal. No right to make certain challenges to evidence. No right to ask for a lower sentence in the guideline. In many cases, it’s better simply to not have that plea agreement and to go in there at sentencing, and argue to the judge for a lower sentence. We’ve done in many cases and gotten a much better result than the prosecutor wanted us to have.

Going to trial can certainly be a very time-consuming, very anxious type of process. There are certainly risks to go into trial, especially if you’re charged with a mandatory minimum. If you get convicted to trial and you have that mandatory minimum, there are only a few ways to get around it if the verdict is guilty. In many cases, you’ll also lose some points under the sentencing guidelines if you go to trial versus entering a plea. But obviously, the benefit of going to trial is being found not guilty. And there’s not anything, in my experience, that compares to the feeling when you can walk with your client out the front door of that federal courthouse after a jury has found your client not guilty of all charges. I have had that happened many times.

And living with a criminal conviction in federal court is a very serious matter. So, if the government doesn’t have the evidence, you did not commit the offense, don’t be afraid to go to trial. You just wanna make sure that both you and your lawyer are very well-prepared.

So, I hope this has been helpful to talk about the basic steps of a federal criminal case. Of course, if you have any other questions, or if you or someone you know is going through this process, feel free to give us a call, and we’ll do our best to help.