WHAT FACTORS CAUSE A CRIME TO BE CHARGED AT THE FEDERAL LEVEL?

A crime that crosses state lines or otherwise involves federal interests will be charged at the federal level. For example, if the crime had to do with the military, or if it took place on federal land, then it would likely be considered a federal offense, and the FBI, Secret Service, and federal prosecutors would investigate and prosecute it. In addition, a crime will be charged at the federal level if it violates a specific federal statute.

What Are the Stages of a Federal Criminal Case?

A federal criminal case generally begins with an investigation. At this point, the suspect likely will not be aware of the investigation. In secret, there will be a grand jury indictment. Since this indictment will be sealed, no one will know about it. Once the indictment is issued, a judge will issue a warrant for that person’s arrest. After the person is arrested, they will be brought for a first appearance, which is called an arraignment. A few things are decided at arraignment, one of which is the question of bail. These cases can go on for years before they get to a jury trial, so the issue of whether the person will be released during the pendency of their case is extremely important. In federal cases bail is usually secured by some property, in addition, guarantors, called suretors, are often required to cosign the bond. Sometimes a person is released on their own recognizance, which means they just sign a piece of paper saying they will return to court.

The judge must consider two factors when making the decision on bail. The first factor is whether the person has any ties to the community. Is the defendant from the state where they are being charged? Does the defendant have a job, family, and friends in the area, and therefore a reason to come back to court? The second factor is whether there is a danger to the community.

Since many of my clients are from overseas and get extradited to the US, they do not generally have ties to the community. As a result, it is exceedingly difficult to overcome the first factor. Unless there is an agreement with the government to release the defendant on bail, they will generally be held in jail during the pendency of the case.

During the arraignment, the Court will ask Defendant whether he reviewed the indictment and how he pleads to it. The person will say, “I plead not guilty,” and once the issues of bail are decided the court will adjourn the case for a status conference. Sometimes during arraignment defendants consent to detention without prejudice, which means they can again request bail at any time in the future. This is done so the defendant’s counsel can try to negotiate with the Government some bail package, or if the Government will not consent to bail under any circumstances, prepare and file a strong motion for bail. After arraignment, the government will provide discovery to the defendant’s counsel, which is information that the government will use during the trial to prove the defendant’s guilt. However, discovery can also contain exculpatory or Brady material, which is information that is favorable to the defendant or shows that the defendant is innocent.

If the defendant is not cooperating and is going to a jury trial, then the court will set a motions schedule, which is the date or the deadline by when the defense must file its pretrial motions. It might include a motion to dismiss an indictment, a motion to suppress evidence due to an invalid search warrant, a motion to compel additional discovery or any other type of motion that addresses some issue in the case. Once all motions are considered fully briefed the court will issue a decision and based on that the case will go to trial. There will be a standard jury trial that results in a verdict, and potentially sentencing if the person is found guilty. The defendant would not go to sentencing right away, but first to a pre-sentencing interview with probation, and that is a complicated process.

In the US, about 95 to 97 percent of cases end up with a plea. In most cases, after a review of the discovery following arraignment, the client will be given an option to either take a plea with cooperation or take a plea without cooperation. Whether the defendant takes a plea with cooperation or without cooperation will depend on many things, such as whether the defendant has information that the government wants.

The way cooperation works is extremely complicated. There are no promises upfront; the defendant must provide substantial assistance, and the government decides in its discretion whether such substantial assistance was provided. If it was, the government will give the defendant a 5K1 letter, which under the sentencing guidelines, gives the judge power to substantially reduce the sentence. However, even if the defendant did not receive a 5K1 letter because the government did not believe the cooperation was of a substantial value, the defendant could still show the judge how he or she cooperated and request a downward departure based on that.

After negotiating with the government a plea, the defendant will usually sign a plea agreement, which is a document that will give the defendant an idea as to what type of sentence they will be getting. Again, there are no promises when it comes to sentencing in a federal case. In federal cases Judge’s look at the total offense level to calculate the recommended sentence under the guidelines. A total offense level is calculated in accordance with the sentencing guidelines and includes various upward and downward departures that can be argued by the defense and the government. Since there are no promised sentences in federal cases, a person could sign a 10-year plea agreement and get 15 years, or three years, the only sentence court cannot issue is above the statutory maximum set by Congress.

Even if the prosecutor recommends a specific sentence, it is still up to the judge. The defendant can make arguments based on their personal history, such as having been abused as a child or growing up without parents. In essence, these arguments can be made in order to show the judge why the defendant should not get a guideline sentence. For example, when asking for probation during the pandemic it was often argued that being in prison would be extremely dangerous.

In some federal cases, the defendant can cooperate after being sentenced. Criminal Procedure Law Rule 35 states that if a defendant cooperates with the government and the government files a motion within one year of the sentence stating that the defendant provided substantial assistance, then the judge can further reduce the sentence post-sentencing. If a defendant waited more than a year to cooperate after they were sentenced, they might still get a reduction under Rule 35 if they can show that during the first year, they did not know the information, but only became aware of it a year after being sentenced.

For more information on Federal Criminal Cases, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (718) 989-2908 today.

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