Federal Criminal Defense
What makes a case federal?
It is a common misconception that federal cases are more serious or more complicated than state cases. Hence the term, “Don’t make a federal case out of it.” While that is often true, that’s not what makes a criminal case federal. Federal cases involve violations of federal law and matters of federal jurisdiction. Many state cases are more “serious” than federal cases, including murder.
Certain offenses can be charged as either federal or state crimes, and federal and state prosecutors often work together to decide who will take the case. Cases that end up in federal court usually result in higher sentences than they would in state court because of federal mandatory minimum and maximum sentencing laws, as well as the federal sentencing guidelines. Federal cases are prosecuted by the local United States Attorney’s Office, whereas state cases are handled by the county prosecutor’s office.
Some common types of federal criminal charges include:
Drug charges (federal drug charges often include manufacturing, distribution, and/or conspiracy to commit drug trafficking)
Tax crimes and IRS investigations (including federal tax fraud and tax evasion)
Health care fraud (including over billing and unnecessary procedure claims)
Financial crimes (including loan fraud, government benefits fraud, and wire fraud)
Firearms offenses (including gun charges for felon in possession of a firearm, use/possession of a firearm in connection with drug trafficking, and possession of certain devices regulated by federal law like machine guns, sawed-off shotguns, silencers, and firearms without serial numbers)
Reasons for charges being prosecuted federally:
The reasons behind why the a federal prosecutor decides to take a case rather than letting the state bring charges include if the case involves:
Charges involving federal government benefits or program fraud (like federal health care programs, Social Security, disaster relief loans, etc.)
Theft and robbery from financial institutions insured by the Federal Deposit Insurance Corporation (FDIC)
Crimes committed by people who have immigrated to the United States illegally
Crimes involving interstate commerce or that cross state lines (including use of the mail, the internet, phones, banks, and interstate travel)
An investigation or arrest by a federal law enforcement agency (such as the Federal Bureau of Investigation (FBI); Drug Enforcement Agency (DEA), the Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF), Homeland Security Investigations (HSI), US Customs and Border Protection (CBP), Social Security Administration (SSA), and the Internal Revenue Service (IRS))
Illegal drugs that are a particular focus of the Department of Justice (such as fentanyl, prescription opiates, cocaine, heroin, and methamphetamine)
Task force investigations that involves multiple local, state, and/or federal law enforcement agencies
Offenses that take place under federal jurisdiction (like military bases, national parks, federal prisons, and some crimes on American Indian territory, including many casinos)
A federal informant or cooperator
Multiple defendants, co-conspirators, or an organized crime ring
A Federal Firearms Licensee (FFL)
A person with prior felony convictions – especially for drugs or violent crimes
Threats or harm to a person of federal interest (like a federal agent, government official, or government cooperator)
Aggravating circumstances (like the use of violence)
How a federal case gets started:
Federal charges can be initiated in one of three ways: a grand jury “indictment,” an “information,” or a “criminal complaint.” In federal felony cases, the United States Constitution requires that the prosecutor present the case to a grand jury to decide whether charges should be issued. A grand jury is composed of 16-23 members of the public who are called to serve on jury duty. Sometimes federal prosecutors use a criminal complaint or felony information as a faster way to issue charges — particularly when a grand jury is not in session. Eventually, the prosecutor must still bring the case before the grand jury within a certain amount of time unless the defendant waives the right to have a grand jury review the charges.
All three methods (indictment, information, and criminal complaint) require the same level of proof to bring charges: probable cause that a crime has been committed.
In a federal investigation, the US Attorney’s Office will sometimes notify the person in advance that they are under investigation and offer them the opportunity to “proffer” by coming in for an interview with a federal law enforcement agency (like the FBI) and the federal prosecutor handling the case. This is a way for the prosecutor to determine whether or not to proceed with the case and whether to give the person a benefit for cooperating. This situation must be approached with caution because it often requires the person under investigation to admit to crimes under federal law. It often leads to someone pleading guilty as part of a plea deal before charges are actually brought. Early cooperation like this can sometimes be the best way to limit potential exposure to significant federal prison time, as opposed to waiting for charges to be issued or going to trial.
How to beat federal charges:
Once the federal government brings charges, it’s very hard to get them dismissed. Unlike county prosecutors’ offices, which bring a large volume of new cases to court every single day, the US Attorney’s Office works on fewer cases at a time, does a generally more thorough investigation, and brings charges that it is confident it can prove beyond a reasonable doubt. However, just because federal charges have been brought does not mean the person will be convicted. Federal criminal defense attorneys can challenge and sometimes defeat charges by contesting the validity of any traffic stop, arrest, search warrant, or statement made by the defendant. Often, state and local law enforcement agencies will be the first people involved in an arrest or search, and there are often solid arguments that what they did violated the Fourth Amendment or the Fifth Amendment. The Fourth Amendment protects people from unlawful searches and seizures. The Fifth Amendment protects people from having to incriminate themselves in the face of law enforcement questioning, and in the heat of the moment officers will often forget to issue Miranda warnings correctly about the right to remain silent. A motion to suppress evidence or to suppress statements is often the best way to challenge federal charges.
If a pretrial motion does not result in dismissal, acquittal by a jury at trial is not unheard of in the federal system. Jurors are savvy and are often skeptical of overly aggressive police tactics or sloppy investigations. If a resolution cannot be reached with the prosecutor before trial, a trial can be a successful approach in the right case.
Federal sentences:
For anyone convicted of a federal crime — whether through a guilty plea or a jury trial — the potential sentences are high. In federal court, the judge must calculate and consider the United States sentencing guidelines. The guidelines are calculated by a combination of factors, including the person’s prior criminal history and key aspects of the offense of conviction (such as the loss amount in a financial crime or the drug quantity in a drug case). In addition to the offense conduct, the court must consider “relevant conduct,” which can include uncharged conduct and even dismissed counts. For example, if a person pleads guilty to transporting stolen goods across state lines, the person will be held responsible for the entire value of the goods or money that was stolen, not just the amount transported over state lines. Similarly, if a person pleads guilty to health care fraud on one date, the financial loss amount for all fraud dates will be counted in the guidelines. At sentencing, the government must only prove contested facts by a “preponderance of the evidence” (> 50%), as opposed to “beyond a reasonable doubt” at trial.
The sentencing guidelines produce a range of time recommended for incarceration. The judge must consider this sentencing range but can go above or below for an articulated reason. The main reason a judge will go above or below the guidelines range is the defendant’s level of remorse or lack thereof, and actions they have taken (good and bad) since the offense occurred.
The attorneys at SBBL Law practice in federal courts throughout the United States.
Collectively, they have litigated thousands of federal cases and appeared many times before federal appellate courts. They bring their expertise as former federal prosecutors, former FBI special agents, and former Army JAGs to help clients navigate the fear and complexity that comes with a federal case. They are adept at advising clients throughout the process, negotiating favorable resolutions, and presenting jury cases at trial.
