In the United States, criminal conduct is prosecuted either on the state level or the federal level. Crimes are prosecuted on the state level when they violate the state’s penal code. In New York, the penal code is called the New York Penal Law. Each state has a different penal code and thus crimes and penalties for those crimes vary slightly state to state.
Federal crimes, on the other hand, are uniform across the United States and involve violations of U.S. federal law. These crimes are investigated by federal law enforcement agencies (such as the Federal Bureau of Investigation, Drug Enforcement Administration, or Internal Revenue Service). After the investigation is complete, these federal crimes are prosecuted by federal prosecutors in the U.S. Attorneys Offices in federal courts.
If you are under investigation by federal authorities or have been charged with a federal crime, you need experienced federal criminal defense counsel. Although your inclination may be to retain a criminal defense practitioner with a state practice, you ought to hire an attorney who has extensive experience with federal criminal defense.
Federal Jurisdiction Over Criminal Matters
Most criminal cases are prosecuted on a state level. The federal government has jurisdiction over these types of criminal cases:
- Crime that takes place on federal property or involves federal agents or officers. For example, murder of a federal agent or a DWI in Yellowstone National Park would be federal offenses.
- Crime that crosses state lines. For example, stealing an identity of an individual in Montana and making purchases using that person’s identity in New York City.
- Crime where defendant crosses state lines. For example, human trafficking or kidnapping of people from Arizona and transportation of the victims to California.
- Violations of immigration or customs laws. For example, smuggling extinct animals into the United States in violation of the Lacey Act or entering the United States under a false identity.
Frequently Prosecuted Federal Crimes
Most federal charges are codified in Title 18 and Title 26 of the United States Code. Some of the frequently prosecuted federal charges are:
- Mail Fraud
- Wire Fraud
- Bank Fraud
- Money Laundering
- Bankruptcy Fraud
- Insurance Fraud
- Computer Hacking
- Federal Drug Charges
- Continuing Criminal Enterprise
- Federal Gun Charges
- Public Corruption and Bribery
- Federal Sex Crimes
- Child Pornography
- Enticing a Minor
- Tax Crimes
- Theft of Government Property
- Obstruction of Justice
- Environmental Crimes
- Federal DWI
- Securities Fraud
Federal law enforcement agencies conduct investigations into violations of federal criminal law by collecting evidence and providing it to the U.S. Attorney’s Office for their district. In some circumstances, agents from multiple federal agencies may be involved in the same investigation because there are overlapping crimes being investigated.
During the course of the investigation, federal law enforcement agents usually:
- Interview witnesses;
- Gather evidence;
- Execute search warrants;
- Monitoring the suspect’s online activity;
- Debrief cooperators;
- Serve subpoenas to obtain documents such as bank records or tax records;
- Listen to wiretaps of the suspect’s phone;
- Conduct physical surveillance of a suspect or a location over the course of weeks, or even months.
Agencies Investigating Federal Crimes
Numerous agencies are charged with investigating and prosecuting violations of federal criminal laws. Some examples of these federal agencies are:
- Alcohol Tobacco and Firearms;
- Department of Homeland Security;
- Department of Veterans Affairs;
- Drug Enforcement Administration;
- Federal Bureau of Investigation;
- Fish and Wildlife;
- Immigration and Customs Enforcement;
- U.S. Postal Police;
- Customs and Border Protection;
- United States Secret Service.
How Do I Know If I Am Under Federal Investigation?
Federal investigations are conducted over the course of months, if not years. Sometimes, an arrest is the first thing that happens in an investigation. However, more often than not, these investigations proceed in secrecy until completion of the investigative process. Individuals find out they are under investigation when one, or several of the following things happen:
- You receive a target letter from the U.S. Attorney’s Office identifying you as the target of a federal investigation;
- You receive a federal Grand Jury subpoena mandating that you produce documents or testify before a federal Grand Jury;
- Federal agents come to your house or a place of business and attempt to interview you;
- Federal agents contact your friends, family, business associates to interview them or to give them subpoenas to produce documents or to testify before a federal Grand Jury;
- A search warrant is executed on your home, place of business, or email account.
When Should I Hire a Federal Criminal Defense Attorney?
You should hire a federal criminal defense attorney as soon as you find out that you are under investigation by the federal government or you start having concerns about your criminal exposure regarding your conduct. Although you should not feel rushed in selecting your federal criminal defense counsel, time is of the essence once law enforcement makes contact with you. Federal law enforcement may contact you by coming to your home or place of business, executing a search warrant on your house or email, or by contacting your family, friends or business associates.
Once you are aware that you are under federal investigation, you need to retain experienced federal defense counsel to ensure your rights aren’t violated by the federal government. The sooner you are able to contact and retain a criminal defense attorney, the sooner we will be able to start learning about your case and developing our defense strategy.
Federal Charging Process
Once the federal agencies complete their investigation, the federal prosecutors at the U.S. Attorney’s Office determine who to charge and what the charges should be. The federal prosecutors can charge someone by a complaint or an indictment. The difference in these two methods is explained below:
Charging Through a Complaint
Charging someone through a complaint is logistically the easiest way for federal prosecutors to bring a case against someone. A complaint is a document drafted by a federal prosecutor and signed by a law enforcement officer (usually main case agent investigating the case). The complaint provides details about the investigation and explains the probable cause for an individual’s arrest . Probable cause is evidence that is sufficient to believe that a federal crime was committed by the individual that the prosecutors are seeking to charge through a complaint.
After the federal complaint is drafted, the law enforcement officer swears out the federal complaint before a federal magistrate judge. If the magistrate determines that there is probable cause to believe that the individual committed a federal crime, the magistrate will authorize the complaint. The magistrate can also sign an arrest warrant.
After an individual is charged by the complaint, they will be brought to court for an initial appearance before a magistrate judge. During the initial appearance, the magistrate will explain the charges in the complaint and determine if the individual will be released pending trial or detained. After charging someone through a complaint, the federal prosecutor has 30 days to present the case to the Grand Jury and obtain an indictment.
Charging someone though a complaint is usually done when the prosecutor does not have enough time to present the case to the Grand Jury.
Charging Through an Indictment
An indictment is an accusatory charging document that is voted on by a federal Grand Jury. Federal Grand Jury consists of 16 to 23 people who hear evidence presented by the federal prosecutors to determine is there is reasonable cause to believe that an individual or a corporation committed a federal offense.
Federal Grand Jury is a one-sided secret proceeding. Only the prosecutor presents evidence to a federal grand jury. The accused and the defense attorney do not have a right to testify or be privy to the evidence that the federal Grand Jury hears. The only people allowed in the Grand Jury are the grand jurors, the court reporter, the testifying witness and the federal prosecutor. Defendant and the defense attorney are not present.
If the federal grand jury determines that there is enough evidence to accuse someone of a crime, an Indictment is issued. This document is drafted by the U.S. Attorney’s Office, signed by the Grand Jury Foreperson (lead juror) and filed with the Court. Once the Indictment is filed with the Court, it becomes the accusatory instrument and replaces the complaint, if one was filed earlier.
The U.S. Attorney’s Office is required to bring the case to trial within 70 days of filing of the Indictment. However, that time isn’t calculated in a straight line. A lot of time is excludable from the calculations of speedy trial time.
Federal Motion Practice
At the beginning of your case, the judge will set forth a schedule for the entire case. The schedule will set deadlines by which the U.S. Attorney’s Office must provide discovery (or evidence in the case) to your federal criminal defense attorneys. After we receive and review the discovery, we will prepare pre-trial motions seeking an order from the judge for any of the following:
- Suppression of evidence because of violations of your constitutional rights;
- Additional evidence and Bill of Particulars;
- Request for disclosure of co-conspirator testimony;
- Request for an evidentiary hearing regarding evidence and its proposed use by the Government.
Federal Trial or Plea
Whether you go to trial or accept a plea your case is entirely your decision. Not your spouse’s, or your parents’ or your federal criminal defense attorney’s. It is yours and yours alone. Deciding whether to go to trial or accept a plea involves many factors, including:
- Understanding the evidence against you,
- Knowing your sentencing exposure at trial as well as collateral consequences;
- Having a trial defense strategy and estimated likelihood of success.
Pre-Sentence Interview and Pre-Sentence Report
After you plead guilty or if you are convicted at trial, the judge will refer your case to the U.S. Department of Probation for the preparation of the Pre-Sentence Investigation Report (commonly called “PSR”). The probation officer is a neutral third party between the Government and the federal criminal defense counsel, who prepares a summary of the case and the Defendant’s nature and personal characteristics to the Court.
The Pre-Sentence Report contains information from the following sources:
- Pre-sentence interview conducted by the U.S. Probation Department of the Defendant;
- Discovery provided by the Government;
- Defendant’s Ra Sheet for calculation of the Defendant’s criminal category based on the criminal history points;
- Interviews of the Defendant’s family members;
- Financial records such as bank statements, tax records and credit check.
Federal sentencing is a very different than sentencing in state criminal court. That is because in a state criminal case, you know what sentence will be imposed in a vast majority of cases. In a federal sentencing, you only have a general idea of what your sentence will be according to the United States Sentencing Guidelines.
United States Sentencing Guidelines is a multi-volume treatise containing many different rules and sentencing factors. While you generally have an idea of what your sentence may be based on your plea agreement, the recommendation of the U.S. Probation Office, or the Government’s estimation upon conviction of the trial, there are many different opportunities to receive a lower sentence. This is done through a downward departure or a downward variance and the sentencing factors contained in 18 United States Code Section 3553(a).
You need skilled federal criminal defense counsel to artfully navigate a federal sentencing and ensure your guideline calculations are correct, and every avenue for reducing your sentence is explored.
Contact Experienced Federal Criminal Defense Attorneys Today
Finding the right federal criminal defense attorney is probably the single most important thing you can do for your case. Federal criminal defense is very different from state criminal defense practice. Therefore, you need to retain an attorney with expensive federal experience who will dedicate the necessary time and effort to your case. Please call us at 212-729-9494 or contact us today to discuss your case.