Facing federal criminal charges is confusing and frightening. Whether you have already been arrested, received a grand jury subpoena, or have been approached by a law enforcement agent requesting an interview, your reputation, livelihood, and liberty are at stake. Here’s advice from federal criminal defense lawyer Benson Varghese on why it is important to act intelligently and quickly.
Fort Worth federal criminal defense lawyers defend individuals who have been accused of violating a federal statute or the Constitution of the United States. While that may seem like a straightforward proposition, the federal system is very different than the state criminal system in Texas. From how the investigation is conducted to how a sentence is determined, every aspect of the federal system is unique. Call our federal criminal defense attorneys today for a free consultation.
Facing Federal Charges? Advice from Our Federal Criminal Defense Lawyer
Our federal criminal defense attorney team in Fort Worth is made up of former federal and state prosecutors with proven results as criminal defense attorneys. Put your trust in our experience. Our attorneys’ backgrounds include:
- Former Assistant United States Attorney
- Board Certified Criminal Law Attorneys
- Federal Public Defender Experience
- Former Prosecutors
- Hundreds of State and Federal Jury Trials
Did you receive a letter requesting your appearance in federal court? Has a federal agent been to your home or work? Were you recently arrested? No matter what stage of the criminal process you are in. We can help. We have significant experience in all stages of federal criminal investigation and representation including:
A federal Target Letter is a formal notice sent by a United States Attorney alerting an individual that they are the subject or “target” of a criminal investigation. The letter seeks the individual’s cooperation or assistance to come in and proffer or discuss the investigation. A skilled federal defense attorney in Fort Worth will be able to guide you through this nerve-wracking process, advise you as to whether you should speak to authorities, and attend any interviews with you.
Grand Jury Subpoena
A federal grand jury subpoena is an order that commands an individual to appear before a grand jury or orders the individual to products books, papers, documents, data or anything else designated in the subpoena. People who disregard a subpoena can be held for contempt of court. An attorney can accept grand jury a subpoena on your behalf; attempt to fight, or quash, a subpoena; and ensure your rights are protected.
During an initial appearance, a U.S. District Judge or Magistrate will inform the accused of the contents of the criminal complaint, as well as their right to an attorney; their right to a preliminary hearing regarding probable cause and detention; and the right to remain silent. If you already have an attorney, he or she can guide you through this process and make sure your rights are protected.
During a detention hearing, the court will determine whether a defendant should remain in custody or be released while the case is pending. Our federal criminal defense lawyer will fight on behalf of the defendant, present evidence, and make compelling arguments as to why he or she is not a flight or security risk and should remain free pending trial. Learn more about preliminary hearings in federal court: [Video].
During the arraignment, the accused will enter a plea of guilty or not guilty. This plea should only be entered after careful and thorough discussions with a seasoned federal criminal defense attorney.
If a defendant goes to trial, a jury will hear the facts and evidence and decide a verdict. If found not guilty, the defendant is released. If convicted, the sentencing process begins. Trials should only be handled by a skilled federal defense attorney. Selecting a jury, questioning witnesses, presenting evidence and making legal objections and arguments takes sharp legal skills which can only be honed over time and through experience.
If a defendant is found guilty, he or she will return to court to be sentenced. The judge will review sentencing guidelines, as well as a pre-sentence investigation report, before deciding upon a sentence. During this hearing, an experienced attorney will do everything in his or her power to lessen or reduce the possible punishment by submitting character letters, as well as a sentencing memorandum, to highlight mitigating and positive factors. Our skilled federal criminal defense attorney is adept at shaving years off a possible sentence by making a powerful case that tells the defendant’s side of the story. Learn more about federal sentencing.
Are You Under Federal Investigation?
Here are some tell-tale signs…
We sometimes receive calls from people who are unsure if they are under federal investigation. Here are some examples that would signify someone is a federal target.
- FBI agent accompanies an official with the state attorney general’s office to retrieve files from a doctor’s office that bills Medicaid or Medicare.
- IRS visits a small business to ask questions regarding tax compliance or transaction reporting requirements such as the filing of an 8300.
- A DEA agent visits a car dealership and asks questions about the rapidity with which certain customers trade-in vehicles.
- An ATF agent visits a homeowner regarding a gun he just sold.
- A Treasury agent visits a coin collector to inquire whether certain coins contain elements that are not in compliance with national standards.
- FBI agent visits a convenience store and asks questions regarding business.
What Should you Do if You are the Target of a Federal Investigation?
If you believe you are the target of a federal investigation, here are three things you need to know right now:
- Agents and prosecutors are not your friends. Don’t go along to get along. Agents may leave individuals with the impression that they don’t intend to file charges, but are simply seeking information. This is often false. Typically, a federal agent’s mind is already made up about whether you will be arrested and charged.
- Don’t talk. People rarely talk themselves out of trouble. Politely decline to speak with federal agents without your attorney present.
- Call us immediately. If you think you are under federal investigation or have received a target letter, you need to contact an experienced federal criminal defense attorney immediately. Our attorney will be able to guide you through the process, advise whether you should cooperate with federal agents, and attend any interviews with you. Very often in federal cases, this is the single most important opportunity to affect the outcome of your case. Call us at (817) 203-2220.
What are the Stages of a Federal Criminal Case?
While most state cases are initiated quickly after a suspected crime occurs, federal cases may be investigated months or even years before any individuals are arrested.
Federal agents use a variety of techniques to gather information, including surveillance, wiretapping or analyzing financial documents. There is also often extensive interaction between targets and law enforcement officials. It’s not uncommon for agents to knock on a target’s door out of the blue and ask questions. They will often couch their request for an interview by saying they are just inquiring or seeking information for benign purposes.
In reality, agents are seeking to develop evidence against a target in a pending investigation. Here’s an overview of the stages of a federal criminal case and an explanation of each step, starting with the filing of a criminal complaint through sentencing:
Law enforcement will file a complaint, or written statement, with a federal magistrate judge outlining the allegations. If the magistrate finds probable cause exists, the magistrate may issue a warrant for the arrest of an individual. Once that person is arrested, the Government has 30 days to file an indictment.
Once an individual is arrested for a federal offense, he or she is brought to meet with a Pre-Trial Services Officer. This officer is employed by the United States Probation Office (USPO). At this point, the officer will ask questions regarding the accused’s criminal history, drug dependency (or lack thereof) and finances, among other things. The officer will then make a recommendation to the judge as to whether the accused should be released while the case is pending or detained.
Preliminary Hearing / Initial Appearance / Detention
The Federal Rules of Criminal Procedure call for both an initial appearance and a preliminary hearing. Sometimes, these hearings occur at the same time or back-to-back. Other times, they may occur on different days.
During an initial appearance – which must be conducted “without necessary delay” – a U.S. District Judge or Magistrate will inform the accused of the contents of the criminal complaint, as well as their right to an attorney; their right to a preliminary hearing regarding probable cause and detention; and the right to remain silent
During the preliminary hearing, which also must occur quickly after an arrest, a federal magistrate judge will inform the individual of the charges against him and determine whether there is probable cause for the offense for which the individual is charged. The magistrate will also decide whether the accused will be released pending trial (Generally speaking, there is no bond in the federal system.) In deciding whether or not to detain an individual, the judge will take into account the nature of the alleged offense, the person’s criminal history and whether or not there was a victim to the alleged offense.
It’s important to point out that there is a presumption against releasing individuals accused in drug cases. Additionally, if an individual has a pending state case, or was in custody on a state case or was on probation or supervised release at the time of the alleged federal offense, it is unlikely he or she will be released.
During the preliminary hearing, the accused’s defense attorney will be allowed to present evidence to challenge probable cause for the arrest and demonstrate that the individual is not a danger to the community or should be released while awaiting trial.
In considering whether to release a person, the judge will consider the following factors listed in 18 USC 3142(g):
- the nature and circumstances of the offense (in particular whether it is an offense which is violent or nonviolent in nature, or involves narcotics);
- the weight of the evidence against the person;
- the history and characteristics of the person’s physical and mental condition;
- family ties,
- financial resources;
- length of time in the community;
- community ties;
- past conduct history relating to drug or alcohol abuse;
- criminal history;
- record of court appearances;
- whether, at the time of the current offense or arrest, the person was on probation, on parole; and
- the nature and seriousness of the danger to any person or to the community that would be posed by the person’s release.
Federal Grand Jury
A federal grand jury is an impartial body of citizens made up of between 16 and 23 people from the community. They listen to evidence, presented by federal prosecutors, and determine if there is probable cause to believe a person, organization or company committed a crime. If so, they will issue a charging document known as an indictment. All grand jury proceedings are conducted in secret. All cases are expected to proceed under an indictment unless a person waives prosecution by indictment.
At the arraignment, the court will make sure the accused has a copy of the charging information or indictment and ask how he or she wishes to plead. If the plea is guilty, the case will be rescheduled to allow for the pre-sentence report interview. If the plea is not guilty, the case will be set for trial.
Discovery refers to the process by which federal prosecutors disclose, or turn over, to the defense their evidence against the accused. Discovery is governed by Rule 16 of the Federal Rule of Criminal Procedures, which outlines a list of materials that must be disclosed to the defense upon discovery. This may include written documents, audio and video recordings, and lab reports, as well as the opportunity to inspect physical evidence such as guns or drugs.
The discovery provided in complex white collar cases such as bank fraud, mortgage fraud, securities fraud, tax fraud, and healthcare fraud, as well as public corruption cases, can be overwhelming for anyone not experienced in handling these matters in a federal arena. Federal cases are often more extensive and complex than state cases for a number of reasons including:
- Federal cases often target enterprises or conspiracies which means multiple people and events are involved.
- Federal offenses often include the use of wire communications or the postal system, which brings additional procedures and materials.
- Federal law enforcement agencies are well-funded. The more resources an agency has, the more charges and evidence they can elicit.
Most people are familiar with state plea-bargaining procedures from television or movies, but they are very different in the federal system. In state court, plea bargaining involves a defendant pleading guilty in exchange for a specific sentence or range. For example, a Texas defendant may plead guilty to possession of a controlled substance in exchange for three years in prison.
In the federal system, such specific plea bargains are rare. While they do exist – called an 11c1C plea – they are few and far between. In fact, federal judges often frown upon them.
In the federal system, defendants are expected to decide to plead guilty without knowing the result or final consequence he or she will face at sentencing. A defendant will plead guilty in return for some concession by the Government, such as dropping part of the charges. For example, many narcotics defendants face multiple-count indictments. A federal defendant may reach a plea bargain with the government where, in exchange for pleading guilty to one charge, the government drops all the remaining counts. Sometimes federal plea bargains involve a defendant waiving his or her right to appeal a sentence. It should be noted that cases may also result in a guilty plea without a plea bargain.
Plea of Guilty or Trial
If a defendant does not plead guilty then the Government has two choices: dismiss the case or take it to trial. Needless to say, dismissals are rare. This is because there is a general expectation in most U.S. Attorney’s Offices around the country that if a prosecutor seeks an indictment, then he or she must be able to justify bringing the charge. A dismissal would be a signal that something was either misunderstood or misjudged by the prosecutor.
If a defendant goes to trial, a jury will hear the facts and evidence and decide a verdict. If found not guilty, the defendant is released. If convicted, the sentencing process begins.
Pre-Sentence Investigation Report
After pleading guilty or being found guilty by a jury, a defendant will undergo a Pre-sentence Report Interview with a U.S. Probation Officer. The probation officer will use information gleaned from this interview (as well as court records and speaking to federal agents) to prepare a comprehensive Presentence Report (PSR) for the judge. This report contains historical, biographical, medical and financial information about the defendant, as well as details about criminal history. It will also describe the offense in detail. The information in a PSR is critical because it determines where the defendant falls in the United States Sentencing Guidelines. In other words, these facts are the foundation for the defendant’s sentence. Simply put, the judge is getting much of his or her facts from a probation officer to determine the defendant’s sentence.
Objections to PSR / Sentencing Memorandum / Character Letters
If a PSR contains exaggerations or inaccuracies then a defendant may object to portions of it. For example, if a probation officer concludes that a defendant had an aggravated, or leadership role, in an offense then an upward adjustment in the sentencing guideline calculation is warranted. However, if the defendant disagrees with that assessment then his attorney can object. If the judge sustains the objection, then that enhancement will not enter the sentencing calculation. Additionally, a federal defense attorney can submit character letters on behalf of the client, as well as a sentencing memorandum. These documents allow the court to consider mitigating and positive factors at sentencing. While it is easy for a defendant to feel hopeless at this juncture, these steps can significantly improve a defendant’s circumstances if done well.
Before 2005, sentencing in the federal system was based almost exclusively on the federal sentencing guidelines. The guidelines describe a series of factors that are to be considered at every federal sentencing hearing. They are a mathematical approach to sentencing where each offense and defendant is given a score. Once that score is tabulated, then the judge has the recommended punishment.
A Hypothetical Example: Federal Sentencing Guidelines: Let’s say a person is convicted for dealing one kilogram of ice that was imported through Mexico and distributed through a drug house. He has one prior felony conviction for aggravated assault in 2010 where he received a 3-year prison sentence. After the PSR interview, the probation officer makes findings in the PSR to give the judge a starting point.
The quantity of drugs – 1 kg or ice – results in a base offense of 34. A two-level enhancement is added for the Mexico importation and a two-level enhancement is added for maintaining a premises for narcotics distribution. This results in an offense calculation of 38. Then, the defendant’s criminal history is added. Because he has a prior felony sentence, the defendant gets three criminal history points, putting his criminal history in a category of II.
So what does a 38 offense level and a II criminal history mean for this defendant? After consulting the guidelines, the recommended sentencing range is between 262 and 327 months. Yes, that is a sentencing range between 21 years and 10 months to 27 years and 3 months.
It’s important to point out that, unlike the state system, probation is rare in the federal system – even though offenses categorized as Class C felonies or below are eligible for probation. The harsh reality is that the great majority of federal defendants face imprisonment. That is why is extremely important for individuals who think they may be under federal investigation to immediately consult a federal criminal defense lawyer in Fort Worth to proactively address the situation. Time is on the side of the government, not the defendant.
Are Federal Judges Required to Follow Sentencing Guidelines?
Luckily, in U.S. v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the sentencing guidelines are advisory only, not mandatory. As a result, the guidelines are only one of seven factors set forth in 18 U.S.C. § 3553(a).
The first of these factors calls for a sentence to be based upon the “nature and circumstances of the offense and the history and characteristics of the defendant.” This is a major development that allows judges to consider a myriad of factors such as the possibility that the criminal history category is over-representative of a defendant’s actual history or that a defendant is a good parent or that the overall drug quantity seriously exaggerates the level of narcotics distribution for which a defendant should be held accountable. Other examples include the possibility that a fraud loss is inflated because the guidelines failed to consider whether that loss calculation overstates the seriousness of a defendant’s conduct. Also, Booker allows courts to consider a defendant’s acts of public service.
Ultimately, Booker tries to put fairness and compassion back into the system. Further, it allows our criminal defense attorneys in Fort Worth to present a myriad of factors to try to improve their clients’ position. Despite Booker’s holding, federal district courts are still directed to make a guideline calculation in every case and use that as the beginning point when determining a sentence.
WATCH: How Does Federal Sentencing Work?
We Understand the Federal Prosecutor’s Playbook
We know from our own experience as former government lawyers how organized, energized, and aggressive federal agents and prosecutors can be. Now, we use that experience to advocate on behalf of clients who have been accused of a federal crime and are looking for sophisticated, intelligent, zealous representation.
No one should face this upheaval alone. Our federal criminal defense attorney understands the severity of your crisis and will approach your situation with empathy, respect, and strategic precision. Don’t delay. Your situation likely will not improve without legal representation. The earlier we can intervene and meet the government head-on, the better the outcome.
Reach Out to Our Federal Criminal Defense Attorney for Help
No matter what stage of the criminal process you are caught up in, our Fort Worth federal criminal defense lawyers can help. Call us today for a complimentary strategy session. During this call, we will
- Discuss the facts of your case;
- Discuss the legal issues involved, including the direct and collateral consequences of the allegation; and
- Discuss the defenses that apply to your plan and in general terms discuss our approach to your case.