The criminal process in a federal court can be confusing and stressful. Sughrue Law believes you have the right to know what to expect during every step of the process. Your lawyer should provide details on the “Big Picture” as well as the many smaller decisions that may save you from being indicted or being exposed to a longer than necessary prison sentence.
When the police learn of an alleged crime, investigators begin by questioning witnesses, questioning the target and requesting and reviewing various records.
If you are approached by the police and you are unaware of an ongoing investigation, ask if you are the target, ask if you are under arrest, and ask if you are free to go. These simple questions will expose the intention of the police.
If you are free to go and not under arrest, be polite, ask for their card and let them know your lawyer will be in touch. Then call Sughrue Law. If you are not free to go, then politely ask for a lawyer. Remember, any information freely shared with the police may be used later in court.
You also have the duty to tell the truth when speaking with the police. Understand there may be a difference between saying “I do not know what you are talking about.” and “I would be happy to talk with you, but I would like a lawyer present when doing so.” The first statement may be a lie for which you may be arrested despite having done nothing wrong in the underlying investigation. The second statement asserts your constitutional rights—an act for which you can never be punished.
If you are aware of an ongoing criminal investigation because you were approached by law enforcement or because you received a compliance letter in the mail, your first step should be to hire an experienced criminal defense lawyer. Known investigations can last for years. Retaining a lawyer to be your mouth piece during the critical early stages may help reduce your exposure or keep you from being arrested all together.
During known investigations, Sughrue Law believes communication is one of the keys to a successful resolution. Good, persuasive communication with law enforcement is only possible once your own internal investigation has been completed. Illustrating your compliance to law enforcement creates an atmosphere of cooperation that can lead to beneficial results.
Of course, in any Client-Lawyer relationship, the Client determines the goals and objectives. Sughrue Law can only provide you with the options and risks as a result of your decisions.
Being aware of your options and the risks involved is one of the most important services provided by an attorney. Being educated about your options and your risks is critical to understanding the penalties you may face as a result of your decisions. An experienced lawyer such as Douglas Sughrue, will clearly outline all of the risks, not to scare you, but to make sure you fully understand the charges you face and the options you have. Planning at an early stage helps reduce the frustration and anxiety of a long-lasting federal criminal investigation.
There are three common ways you can be arrested in federal court. The first and most common is through an indictment. The other two ways are through a criminal complaint or criminal information.
An indictment is a formal accusation that you committed a federal crime and a trial is justified. An indictment is issued when the prosecutor presents enough evidence to convince a federal Grand Jury that a crime was committed by a particular person(s). After the indictment is issued, the accused is usually arrested in the early morning hours by a team of law enforcement officers knocking down your door. If you are arrested via indictment, you do not have the right to a preliminary hearing in federal court.
A criminal complaint is also a formal accusation. But, instead of having a Grand Jury decide if a crime was committed, a police officer writes out an affidavit of probable cause. This will summarize why the police believe a crime was committed and who they believe committed the crime. Usually, criminal complaints are used when a police officer personally observes a crime or when law enforcement wants to make a quick arrest to allegedly secure the safety of the community or a potential victim. Next, the complaint and affidavit are presented and approved by a judge.
When you are arrested in federal court on a criminal complaint, you have the right to challenge the arrest during a preliminary hearing. However, because the United States has to divulge details of the crime during a preliminary hearing, the United States usually convenes a Grand Jury (depending on the case) to request an indictment prior to the preliminary hearing.
So, if you have an option to have a preliminary hearing, have one. An experienced criminal defense lawyer will want to cross-examine the United States’ witnesses to take full advantage of the limited discovery rules in federal court.
The last way to be arrested in federal court is through the filing of an Information. Informations can result after an arrest via indictment or criminal complaint, but only in unique cases. The most common use of an arrest via Information is after a known investigation is completed. As stated above, sometimes after years of investigating, both the United States and the accused negotiate a resolution. By agreeing to the filing of an Information, you avoid unwanted media exposure and police knocking down your door at 6:00 a.m. Additionally, since most of the terms of the case have already been resolved, there are fewer surprises. As you have probably already concluded, Informations are used when the accused is willing to plead guilty or enter a pretrial diversion program pursuant to a negotiated plea agreement.
After being arrested in federal court, an initial appearance and arraignment is held before a magistrate judge to outline all of your charges. During those proceedings, you enter a “not guilty” plea and your bail is set. Bail or bond, as it is often called, is the money you pay to stay out of jail while awaiting trial. The amount of bond is determined by many variables, including the seriousness of your charges, your criminal record, your ties to the community, and recommendations from the prosecutor and pretrial services. When bail is set by a magistrate judge, if the amount is too high, the bail conditions can be challenged by appealing to the U.S. District Court Judge assigned to your case.
After the arraignment and after receipt and review of your Rule 16 Discovery, your attorney should meet with you, discuss the evidence and develop a plan to resolve the case. Resolving the case may mean the preparation and filing of various pre-trial motions. Thoroughly researching and preparing pre-trial motions is important if there are any issues surrounding the investigation, your arrest or the discovery process. At times, the filing of pre-trial motions is done to attempt to gain some leverage over the United States in order to bring about a favorable plea agreement. However, when the plan is to have a jury trial, the filing of pre-trial motions force the United States to reveal some of their strategy and requires the judge to make decisions that can later be appealed if the judge’s decision is unfavorable to the defense.
Filing pre-trial motions is not without its risks. At times, the United States will not provide you the full benefit of a guilty plea after pre-trial motions are argued and the judge makes a decision.
A simple fact of life is that most federal criminal cases resolve themselves in some type of guilty plea. You can plead guilty to an indictment in several ways. You can plead generally to the indictment, which is also known as an open plea. An open plea has benefits and risks. The other way to plead guilty in federal court is through a plea agreement, which can contain agreements concerning any sentencing variable relevant to your case. For example, if you and the United States agree to the amount of tax loss, theft loss, drug quantity or other sentencing variable, a plea agreement can firm up this variable. Plea agreements can also be conditional plea agreements, which contain language preserving your ability to appeal certain issues lost during the pre-trial motions stage. Issues preserved in conditional plea agreements are almost always case dispositive issues. A judge can accept or reject the terms of any plea agreement as the contract is between you and the United States—not you, the USA and the judge. Most often, judges will approve plea agreements as judges have faith in the lawyers involved, who are more familiar with the case than they are, to come to a reasonable resolution.
The last way you can plead guilty is through a Rule 11(c)(1)(c) plea agreement. Although Rule 11 of the Federal Rules of Criminal Procedure controls all pleas, even those mentioned above, Rule 11(c)(1)(c) is a plea of its own color. Rule 11(c)(1)(c) plea agreements are plea agreements to a particular sentence. Rule 11(c)(1)(c) plea agreements can also contain language that permits certain pre-trial, case-dispositive issues to be appealed. 11(c)(1)(c) pleas, as they are called, are “firm plea agreements” that a judge can either accept or reject at the time your plea is made. If a judge rejects the plea, you can still withdraw your plea and go to trial. You can also renegotiate the terms of the agreement with the United States so that the deal is acceptable to the judge. A judge may reject the 11(c)(1)(c) plea agreement because it is too lenient or too harsh or the judge believes the facts do not support the plea. The judge does not necessarily inform the parties as to its reasons to reject the 11(c)(1)(c) plea agreement. If the judge accepts the 11(c)(1)(c) plea agreement, your sentence is set. There is nothing more to do except to go through the four month long presentence investigation process and then get sentenced to the deal to which you agreed.
Once arrested or approached by law enforcement, your lawyer’s job is to explain your options and help you develop a game plan. Your plan may be to go to trial or negotiate a plea. Your plan may be to “shut-up, sit-down and do your time.” That decision is up to you.
However, as your case proceeds through this most stressful of processes, you will want your lawyer to investigate the possibility that you be admitted to a pretrial diversionary program. Basically, a diversionary program provides you the opportunity to earn a clean record by agreeing to probation for a period of time, fulfilling the terms of your probation and paying any fines or court costs. Once completed, the United States will file a motion with the court to have your indictment dismissed. Admittance into a pretrial diversionary program is rare and is usually too good an offer to pass up.
If or when plea negotiations and certain pretrial motions fail, the only way to move a case forward is by requesting a trial. A trial is a very stressful endeavor. Trials in federal court can last weeks or months. Trials involve long days for you and your lawyer. Trials take you away from your family and your routines. Preparation for a trial begins during your first consultation with your lawyer. In fact, preparing for a trial begins when you are talking with different lawyers to determine who you are going to choose to defend you. You may want to interview several lawyers prior to choosing one.
A trial is the presentation of the case against you by the United States to a jury, judge or, in rare circumstances, a combination of both. Before a trial can begin, a jury has to be chosen. You will be present for this. You have to be involved in choosing the people about to judge you. At trial, you enjoy and exercise many of your constitutional rights. You are presumed to be innocent. The judge will instruct the jury as such. You do not have to testify. The judge will tell the jury this as well. The judge will also tell a jury that the United States must prove their case beyond a reasonable doubt. Beyond a reasonable doubt is doubt which is said to cause a person to hesitate when making an important life decision. Then, if the doubt which causes the hesitation is reasonable, the United States has failed to meet their burden of proof—they have failed in proving their case against you beyond a reasonable doubt.
At trial, you also have the first opportunity to present your case—your side of the story. Your story is best told by witnesses, records and documents. If a fact can be presented to the jury without you taking the stand, most experienced criminal defense lawyers will chose to do so. From the moment you hire your lawyer, he/she should begin to prepare you to testify at your trial. Preparing you to testify helps to reveal all of the details about your defense and may help to develop other witnesses or records that tell your story more persuasively. However, as long as your lawyer has adequately prepared you to testify, your testimony can be very persuasive when it corroborates the other evidence you have provided to the jury through your other witnesses, records and documents.
Trials are filled with uncertainty such as surprise witnesses, no-show witnesses or witnesses who recant their testimony. Trials are filled with unknown, uncontrollable variables for you and the United States. Because of this, although extremely risky, some of the best plea agreements are reached in the hours before the trial begins.
Trials end when a jury makes a decision. A jury’s decision has to be unanimous, whether the verdict is “not guilty” or “guilty.” When the jury finds you “not guilty,” you walk out of the courtroom free from the stress and anxiety that has filled your life for many months or even years. When a jury finds you “guilty” of some or all of your charges, your journey does not end. Now, you have to prepare for sentencing.
You proceed to sentencing after being convicted of a crime. You can be convicted of a crime through a plea or after a trial. Your lawyer should be preparing for sentencing from your very first meeting. Preparing for sentencing does not mean your lawyer wants you to plead guilty. It means your lawyer is communicating with you and developing evidence to help you avoid an unnecessarily harsh sentence if convicted. Preparing for sentencing can aid in plea negotiations resulting in a favorable plea agreement. Furthermore, after being convicted, your judge will order the U.S. Probation Office to prepare a presentence investigation report (PSIR). Your lawyer should attend your interview with the Probation Officer to help you answer any questions and provide favorable information.
Sentencing is its own trial within a trial. If you have lost a trial, your focus should switch to presenting persuasive evidence to the judge that details who you are, what makes you tick, what type of life you had growing up. Your lawyer should outline what emotional, mental or physical disabilities you have and what you plan to do to reduce the possibility of being in trouble in the future. Your lawyer will be developing and presenting evidence relevant to the sentencing factors found in 18 U.S.C. §3553(a).
Sentencing is federal court is complex. But, basically, §3553(a) is meant to provide judges and lawyers a list of factors that should be considered when fashioning a sentence for you. In the end, the judge will sentence you pursuant to §3553(a) to a sentence that is “sufficient, but not greater than necessary” to achieve the goals of sentencing.
The PSIR written by the Probation Officer will, among other things, detail your prior criminal history, offense conduct and your standard guideline range sentence. Your lawyer’s job is to review this report with you to confirm it is accurate. Ideally, the PSIR guideline range sentence will be similar to the advice you received from your lawyer so there are no surprises. The PSIR also aids the judge in sentencing you to an appropriate sentence using the §3553(a) factors.
In federal court, sentencing has become and remains a very dynamic aspect of federal criminal law. Because our politicians only worry about winning their next election by being “tough on crime,” politicians have failed to act to reform the federal criminal justice system. Our country’s founding fathers developed our criminal justice system to consider us as individuals on a case-by-case basis. Our country’s founding fathers intentionally made it difficult for the government to incarcerate its citizens. Now, career politicians and mandatory minimum sentences have removed many of the hurdles the government has to clear to incarcerate you. Mandatory minimum sentences reduce a judge’s ability to fashion a sentence based upon the person in front of them instead of upon the ever-changing tides of a politician’s position. Reform has been promised by some brave Senators and Representatives who understand that the United States incarcerates too many of its citizens for too long of a time with little to no resources being dedicated to rehabilitation and support post-incarceration.
Once convicted and sentenced, you will have certain appellate rights remaining. The preparation and filing of appeals is rule driven and based upon the record of the case. You will not have much involvement in the filing of your appeals. Often, you will have waived many of your appeal rights in order to obtain a favorable plea agreement. Only upon conviction after a trial do you maintain all of your appellate rights concerning your guilt and your sentence. Preparation of any type of appeal is time consuming, complex and requires dedication.
Your first level of appeal is to the Circuit Court of Appeals for the district in which you were prosecuted and convicted. Your notice of appeal must be filed within 14 days of your sentence becoming final. Simply stated, at the first level you can appeal any issues preserved as a result of a conditional plea agreement, judicial error, and/or any known, record based prosecutorial misconduct. From the Circuit Court of Appeals, you can request to have your appeal heard by the U.S. Supreme Court. However, although many people request that their appeal be heard by the Supreme Court, the Supreme Court does not accept very many.
Your second level of appeal involves any matter recognizable under 28 U.S.C. §2255 or more commonly known as a Habeas Corpus Appeal. Most often, §2255 is used to obtain new trials based upon after discovered evidence, ineffective assistance of counsel, prosecutorial misconduct and a change in sentencing law. An appeal using §2255 is about the criminal case, but also has a civil component to it. Therefore, §2255 appeals are first heard by the same U.S. District Court Judge that presided over your case. Thereafter, if you lose at the District Court level, you can file an appeal to the Circuit Court of Appeals and then to the U.S. Supreme Court as mentioned above.
If you wish to appeal any aspect of your case after sentencing, time is of the essence. Federal court requires that an appeal be filed within 14 days.