Federal Criminal ProcessEach step in the Federal Criminal Process is very significant and essentially represents either a pitfall or an opportunity. When an individual is suspected of or charged with a crime the entire criminal justice system, complete with its unlimited resources and tough on crime attitude, begins to negatively influence the fate of the citizen involved regardless of whether or not the citizen actually did anything wrong. This process all too often ultimately ends in wrongful convictions and/or excessive punishments. Effective and aggressive legal representation is the only way to alter this destructive overreaching government takeover of individual liberty. The legal professionals at the Law Offices of Roderick C. White view every step in the Federal Criminal Process as an opportunity to protect the rights and liberty of all citizens through the aggressive independent protection of each individual client. If you or a loved one are suspected of or charged with a crime contact us for a free initial consultation before the law enforcement machine decides you or your loved one’s fate. While nothing can replace the protection of an aggressive experienced criminal defense attorney, an understanding of the Federal Criminal Process will help you and your family make the best decisions possible concerning any criminal charges. Accordingly, below are links to a more detailed discussion of each stem in the Texas Criminal Process: • FEDERAL CRIMINAL INVESTIGATIONS
Federal criminal investigations differ from state criminal investigations in many significant ways. In state investigations, a suspect is often arrested before the case has been thoroughly investigated. When federal prosecutors bring charges, they have often already thoroughly investigated the matter. Federal criminal investigations do not necessarily have to be initiated by a federal law enforcement agency to be handled by a federal court. State law enforcement investigations involving weapons, drugs, computer crimes, and white collar crimes often end up being prosecuted in the federal courts. Although initial contact with law enforcement in a federal criminal case may begin with an arrest, it often occurs in a much less alarming manner. In some cases, the FBI or DEA might call you just to ask a few questions. The first contact with a law enforcement agent is not only a good time to get the advice of a criminal defense attorney, it might be the only time for you to do so in order to preserve your ability to defend yourself against future criminal charges. The initial contact between you and the federal government is an extremely important point in your case. Federal law enforcement agents have the specific training and extensive experience necessary to elicit incriminating information from people who would never have imagined that they would speak voluntarily with law enforcement. Agents will frequently emphasize (and exaggerate) the extent of the trouble you face, and may also tell you what others involved in the investigation have (allegedly) said about you. Agents may also suggest favorable treatment in exchange for information. In many ways federal law enforcement agents have mastered the art of deception, and they will likely rely on these skills to collect evidence against you. You have an absolute right to refrain from speaking with any federal agent about anything, and those same agents are required to stop asking you questions provided you invoke this valuable right. Most agents operate at a very high level of integrity and will terminate questioning upon invocation by the subject of his or her right to remain silent and right to counsel. However, you must clearly and unequivocally advise the agents that you refuse to answer any questions without consulting with your lawyer, or without your own criminal defense attorney present. Statements like "maybe I should talk to a lawyer" or "do I need a lawyer for this?" might not be specific enough to invoke this right when you're being questioned about money laundering or federal drug crimes. It is an enormous risk to think you can talk your way out of trouble with the Department of Justice. There are also often significant differences between state and federal systems in the use of the Grand Jury. For example, citizens who ultimately end up as defendants in federal criminal cases often get a target letter from the U.S. Attorney which suggests that you might be close to a grand jury indictment on a federal narcotics charge, a mortgage fraud case, or other federal offense. A federal grand jury obtains much of its evidence by subpoenaing individuals suspected of federal crimes or individuals with knowledge of federal crimes. The individual subpoenaed can be either a target, subject, or witness. The "target" of a federal grand jury is a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. It is important to understand that federal prosecutors view the targets of an investigation as guilty. The term "target" is distinguished from the term "subject," which means that that person is a person whose conduct is within the scope of the grand jury's investigation. Likewise, a "witness" is a person who is expected to help the government find probable cause to have an indictment issue from the grand jury. All three may be asked or subpoenaed to appear before the grand jury, and if the individual is not careful, especially if he is a "subject" or a "witness," that testimony could hurt rather than help his cause. If you are subpoenaed for testimony in your individual capacity, you may be able to avoid answering substantive questions by invoking the Fifth Amendment’s Privilege against Self-Incrimination. This is true even if you are not a target of the investigation. The right to invoke the Privilege against Self-Incrimination is much broader than most witnesses and attorneys realize. If a truthful answer to a grand jury question would even tend to incriminate you, you can invoke the privilege and refuse to answer. How can an answer tend to incriminate you? If it furnishes any link in the chain that might lead to your conviction, it tends to incriminate. Can a person who is totally innocent of wrongdoing invoke the privilege? Absolutely! The Supreme Court has ruled that the privilege protects the innocent as well as the guilty. An innocent person might need to invoke the privilege to keep from being ensnared by a mistaken, incompetent, or unscrupulous prosecutor. The Law Offices of Roderick C. White competently and aggressively represents individuals subpoenaed to appear before a federal grand jury. Contact us immediately for a free initial consultation before something is said or done that will have a negative effect on your ability to defend against future federal criminal charges. Lastly, the law enforcement agencies involved in federal criminal investigation differ from those typically conducting criminal matters ultimately prosecuted in state courts. These law enforcement agencies differ in more than name. Federal law enforcement agencies have more resources and their personnel typically have vastly more education, training, and experience. These agencies typically include the following: • Federal Bureau of Investigation (FBI) Federal grand juries concentrate on investigating and bringing charges for federal crimes. The Fifth Amendment to the U.S. Constitution requires that charges for all capital and "infamous" crimes be brought by an indictment returned by a grand jury. Because of the Fifth Amendment, the federal legal system has to use grand juries to bring charges. The amendment has been interpreted to require that an indictment based upon probable cause be used to charge federal felonies, unless a defendant waives his or her right to be indicted by a grand jury. A federal grand jury has anywhere from 16 to 23 members, and their terms usually are for 18 months, while some grand juries have two-year life spans. One person is appointed as the foreperson, and another as deputy foreperson; the foreperson administers oaths and affirmations, and signs all indictments. The number of jurors concurring in the indictment will be recorded, but the record is not made public unless the court so orders. Grand jurors, interpreters, court reporters, transcribers, and government attorneys have an obligation not to disclose any matter that occurs before the grand jury. A federal grand jury is a purely one-sided affair. The only people who may be present while the grand jury is in session are: 1) attorneys for the government, 2) the witness being questioned, 3) interpreters when needed, and 4) a court reporter or an operator of a recording device. You will notice that the target (unless he happens to be the witness), and the attorney for the target are not among those listed. After the government provides its version of the facts that supports its basis that the target of the investigation committed a federal crime the grand jury will deliberate about whether an indictment should issue. The grand jury can indict the target only if at least 12 jurors concur. This means that, on a 23-member grand jury, an indictment can issue when a bare majority votes to indict. The indictment must be a plain, concise, and definite written statement of the essential facts constituting the offense charged. It must be signed by an attorney for the government, and it need not contain a formal introduction or a conclusion. Each count of the indictment may allege that the means "by which the defendant committed the offense are unknown." However, in each count, the relevant statute allegedly violated must be provided. In the event that an error is made and a citation is omitted or a different offense is charged than was intended, it is not fatal unless the defendant was misled and thereby prejudiced. Often the indictment will be sealed, or kept secret, until the defendant is in custody, and people involved in the indictment are under an obligation to keep its existence secret. At this point, the individual who has been indicted often is not aware that he has been indicted, and the US Attorney and a federal agent will walk out of the grand jury room, walk down the hall to the Federal Magistrate Judge, and in over 99% of the cases, an arrest warrant is issued. The "target" is now the "defendant." The Warrant The magistrate will issue a warrant for each person named in an indictment. The warrant must contain the defendant's name, the offense charged, command that the defendant be arrested and brought without unnecessary delay before the magistrate judge, and be signed by that judge. The next step is the arrest, and the often-unwitting defendant will be encountered at his home or workplace by 12-18 armed federal agents. He is arrested, brought to jail, and the next business day (which is often a Monday because the agents like to make arrests on Fridays) is when the defendant is brought before the federal court. Preliminary Hearing At the preliminary hearing the government must demonstrate to a judge or magistrate that there is sufficient evidence, or probable cause, to believe the suspect committed the crime with which he or she is charged. Defendants usually must be present at this hearing, although they do not commonly offer evidence in their defense. Alleged victims seldom appear at preliminary hearings. Often, there is just one witness, the law enforcement officer who investigated the crime or who arrested the defendant. This procedure has a similar function to grand jury proceedings, in that it is a safeguard against unjustified government action. If the court finds that there is no probable cause, the matter is immediately dismissed and defendants are released. The prosecution can re-file or pursue the case at a later time if they obtain additional evidence. If the court finds there is probable cause the matter is transferred to trial court. While the initial charging document in a federal criminal case is often a criminal complaint detailing the probable cause for the arrest, the government can prosecute felonies only by obtaining an indictment voted upon by a grand jury. If an indictment has already been obtained, there is no right to a preliminary hearing because the grand jury has already determined that there is probable cause to believe that the individual charged committed the offense. Detention Hearing Preliminary hearings and detention hearings are often held together. Nevertheless it is at the detention hearing that a U.S. Magistrate Judge determines if the individual charged will be released. While there is a presumption in favor of pretrial release, the court focuses on whether the individual poses a flight risk or whether releasing the defendant endangers the safety of another person or the community. Some crimes, however, involve a rebuttable presumption that the individual poses a threat to the community. These crimes are: (1) a crime of violence, (2) a terrorism-related crime that carries a maximum term of imprisonment of 10 or more years, (3) an offense for which the maximum penalty is life imprisonment or death, (4) a drug crime carrying a punishment of 10 or more years in prison, or (5) any felony if the individual has previously been convicted of two or more of the previous offenses. There is a three-step process for determining whether an individual will be detained pending trial. First, the Magistrate Judge determines whether the person should be released on a personal recognizance or unsecured appearance bond. If the person is released, he must not commit a Federal, State, or local crime during the period of release. The second prong occurs if the Magistrate Judge determines that the individual should not be released on his own recognizance or on an unsecured bond. In that case, the Magistrate Judge may decide to release an individual under a combination of conditions, including the posting of bond. These conditions may include travel restrictions, maintaining employment, submitting to drug testing and counseling, submitting to a curfew, residing in a halfway house, or home detention. Finally, if the court feels that release is inappropriate, it must conduct a detention hearing where both the prosecution and the defense can be heard. The Federal system is not like State system. An individual cannot go to a bail-bondsman and have the cash provided for a percentage fee. If a cash amount is set by the Magistrate Judge, the individual may have to front a percentage of the bond himself, or sign a pledge to forfeit the bond if he fails to appear for trial. If he appears for trial, the bond money will be returned to him. In the event pretrial detention is contemplated, the detention hearing must be held immediately upon the individual's first appearance before the Magistrate Judge, unless a continuance is sought. Except for good cause, however, the continuance cannot extend beyond five days. At the hearing, the individual has the right to be represented by counsel, and he has the opportunity to testify, to present witnesses, to cross-examine witnesses who appear at the hearing, and to present information by proffer or otherwise. The rules of evidence that govern trials, however, do not apply to a detention hearing. The Magistrate Judge can only order the detention of the individual if no condition or combination of conditions will reasonably assure the safety of any other person and the community, and the decision must be made with the support of clear and convincing evidence. If the court orders the release of the individual, it must issue a written order that states all of the conditions of release, and that advises the individual of the penalties for violating a condition of release. If the court determines that the individual must be detained, it must do so in a written statement that states the findings of facts and reasons for detention, that orders the individual to be housed separately from convicted inmates, that orders the defendant a reasonable opportunity to consult with counsel, and that orders the defendant to be returned to court for all related proceedings. Arraignment On an indictment, you will be scheduled for an arraignment before a U.S. Magistrate Judge. At the arraignment, your charges are read to you. At that time, you will be required to enter a plea of guilty or not guilty to the charges against you. You will be advised of your rights. No evidence will be taken at this time. Shortly after this, the court will set dates for motions to be filed and for evidence to be disclosed, and a date for your case to be tried. Your attorney will advise you of your rights and options. Absent a waiver of the defendant's right to a speedy trial, his federal criminal trial will begin within 70 days. Discovery Federal law provides limited access to the government’s evidence against you. In some cases, the prosecutor may provide more information than the law requires and make available the entire discovery file for review. In such cases, your attorney can review all evidence, testimony and investigative reports relevant to your case that are in the government’s possession. In other cases, the prosecutor may limit access only to those materials that, under the law, must be made available to the defense. In either event, only your attorney will have direct access to the government’s discovery file. Your attorney should work closely with you to make sure that you know, and understand, what evidence is contained in the government’s file. The rules of discovery must be strictly adhered to. Your attorney will discuss these rules with you as your case progresses. Your attorney will also communicate with the prosecutor to try to get an idea of the government’s view of your case. These discussions can be very helpful as we prepare your case and as you make important decisions regarding how to proceed. Whenever we talk to anyone outside our Office, we are very careful not to disclose any of the confidential information that you have told us or reveal any confidential strategy or results of our investigation. Pre-Trial Hearings The court may set any criminal case for a pre-trial hearing before it is set for final trial on the merits. Pre-trial hearings are used to determine legal issues. Pre-trial matters are decided by the judge and in most situations both the defense and/or prosecution present evidence and/or witness testimony. At pre-trial hearings judges have an opportunity to hear evidence presented in order to determine what evidence is admissible at trial. For example, whether law enforcement legally arrested a suspect and gathered evidence, pursuant to applicable federal law and the United States constitution. If the person was unlawfully arrested, or the search and/or seizure were illegal, grounds exist for suppression. This means the prosecution may not be able to introduce the improperly obtained evidence at trial. Where essential evidence is suppressed, cases must be dismissed. For example, if police unlawfully search a suspect’s home without a warrant or without the suspects consent, the evidence recovered cannot be used to prosecute the suspect. Judges make such a determination at pre-trial hearings. The burden of proof is on the prosecution. If their burden is not met that serves as grounds for suppression. Once met, however, the accused must demonstrate his or her rights were violated to be entitled to have the evidence suppressed (i.e., excluded from trial). Another evidentiary issue determined by the court at pre-trial hearings involves statements made by a suspect. An accused must "knowingly, intelligently and voluntarily" waive his or her right to remain silent (Miranda Rights) before law enforcement can lawfully take a statement. Prior to taking a statement from a person in custody accused of a crime, police must inform the suspect of his or her Miranda rights. If this is not properly done the judge may suppress the statement at a pre-trial hearing. Additionally, at pre-trial hearings, if the person accused was identified in a line-up or photo array, evidence must be presented demonstrating neither procedure was conducted in a manner creating an improperly suggestive identification of the person accused. If the prosecution cannot meet this burden of proof, the court will not permit evidence of the identification and the identification procedure to be introduced at trial. These are just a few significant issues addressed at pre-trial hearings. An aggressive effective defense is crucial at every stage of a criminal case. The Law Offices of Roderick White are prepared to provide the both effective and aggressive legal representation needed to get the very best result possible. Pre-Trial Case Resolution After indictment there are essentially two ways a criminal case may be resolved prior to trial: 1) dismissal; or 2) plea-bargaining. The most favorable form of pre-trial disposition of a criminal case is a dismissal. The prosecutor may, with the consent of the judge, dismiss a criminal case. Common reasons for dismissal include: (1) insufficient evidence - for example, post-indictment trial preparation reveals a fatal lack of evidence such that the court would instruct a verdict in favor of the defendant; (2) crucial evidence is suppressed (excluded) because of an illegal arrest or search; (3) the defendant pleads guilty to other offenses (often less serious offenses); and/or (4) necessary witnesses cannot be located. While there are many potential reasons for a dismissal, a competent aggressive defense, spearheaded by a competent aggressive criminal defense attorney, is almost always either directly or indirectly responsible. For example, it is usually the defense attorney that convinces the prosecutor that there is insufficient evidence to successfully prosecute or gets the crucial evidence necessary to prosecute the case suppressed. Like most other favorable results, dismissals of criminal charges are often the result of an aggressive effective defense. While pre-trial dismissals are not always possible in every case, the aggressive attorneys at the Law Offices of Roderick C. White have obtained numerous dismissals of serious criminal charges and are ready, willing and able to aggressively seek the dismissal of any and all cases that we handle. Plea Bargaining is the disposition of criminal charges by agreement between the prosecutor and the defendant, under judicial supervision. Under the United States Sentencing Guidelines, prosecutors may exert a significant amount of influence over the ultimate sentence by deciding how to charge a case, by bargaining the application of guideline provisions, and by filing motions for downward departures based on substantial assistance. In order to provide effective assistance of counsel, a criminal defense practitioner must know when and how to counter the prosecutor’s power and negotiate a beneficial plea-bargain on behalf of his client. While it is the judge in federal court that ultimately decides any punishment an appropriate plea agreement may go a long way in obtaining the most favorable result at the sentencing hearing. The vast majority of all criminal cases are resolved by some form of plea bargaining. Why plea-bargain? A good criminal defense lawyer invariably asks two basic questions after thoroughly reviewing a case: 1) Can I help my client beat these charges? and 2) If I cannot help my client beat these charges, how can I help him get the best result possible? Helping clients beat criminal charges in high profile trials is the portion of a criminal defense lawyer’s that television shows and movies focus on. While the criminal trial is quite likely the most exciting part of the job, ensuring that clients get the best results possible when a trial cannot be won is a very important part of being a good criminal defense lawyer. This is where plea-bargaining often comes into play. Because not every criminal case can be won at trial, a good criminal defense attorney must also be a good negotiator. Effective and aggressive plea-bargaining is sometimes the best way to minimize a client’s exposure to a lengthy federal prison sentence. The attorneys at the Law Offices of Roderick C. White are both aggressive trial lawyers and skillful negotiators that will do everything possible to secure probation or minimize any sentence. Jury Selection A criminal defendant's right to a trial by an impartial jury is guaranteed by the Sixth Amendment to the United States, which states in pertinent part "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed." The procedure for obtaining this impartial jury is found in the Federal Rules of Criminal Procedure. A defendant who is entitled to a jury trial, must have a jury unless he waives his right to a jury trial in writing, the government consents, and the court approves. The jury is composed of 12 members, though the parties may stipulate that the jury can consist of less than 12, or if the court finds there is good cause to excuse a juror. During jury selection, prospective jurors can be examined either by the court or by the attorneys for the parties. However, the court must permit the attorneys to ask further questions that the court considers proper or to submit questions that the court may ask if it considers them proper. Each side is entitled to a certain number of peremptory challenges. A peremptory challenge means that either side may excuse a juror for no official reason. However, peremptory challenges based solely on race are not allowed. In a death penalty case, each side gets 20 peremptory challenges, while all other felony cases allot 6 peremptory challenges to the government and 10 combined peremptory challenges to the defendant(s). In the event an alternate juror is asked to step in, each side is entitled to additional peremptory challenges. In some situations, the court may allow extra peremptory challenges. Both sides have unlimited challenges for cause, but if they choose to exercise those challenges, they must make a compelling argument that requires that that juror should be excused. Opening Statements Once the jury is successfully empanelled, it is time for opening statements. The government goes first, laying out what it thinks the evidence will show. It must be very careful not to make arguments during the opening statements, and anything that is said during the opening statements cannot be treated as evidence. Opening statements can last a very long time. In some cases, each party may have two hours. In other cases, the opening statements may be shorter. It depends on the time allotted by the judge. After the government makes its opening statements, it is time for the defense to make opening statements. The defense can elect to make its statements at this point, or it can wait until the government finishes its case-in-chief. The choice depends on what works better strategically for the defense; if the defense feels that the prosecution can't prove anything and has a weak case, it may decide to wait. If the case might be closer and might require a little more empathy from the jury, the defense may elect to make its opening statements immediately after the government. During the defense's opening statements, it may try to refer to the government's statements to put them in a fuller context, or it may elect to state that the evidence will show that the defendant didn't commit the crime. There is no one way to make an opening statement. After the opening statements, the trial really begins. Direct Examination The first side to present its case-in-chief is the government. It has the burden of proving that, beyond a reasonable doubt, the defendant committed the alleged crimes. To prove the defendant's guilt, the government must present evidence that supports this, and eliciting testimony on direct examination which is the first questioning of a witness in a trial or other proceeding, conducted by the party who called the witness to testify. The Federal Rules of Evidence state that every person is competent to be a witness, unless there is some exception. However, the witness can only testify about things within that person's personal knowledge. It is up to the direct examiner to get the witness to establish that he has personal knowledge of the matter. This is often done through the witness's own testimony, which can be given only after an oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness's mind with the duty to testify truthfully. During direct examination, no leading questions may be asked, except as may be necessary to develop the witness's testimony. They may be used to refresh a witness's recollection of events, or to quicken the pace of trial. The general idea behind this rule is that the jury wants and needs to hear the testimony from the witness, rather than the lawyer, and leading questions prohibit the jury from getting a full picture. On the other hand, leading questions are essential for cross-examination. Cross Examination Cross examination is the opportunity for the defense to clarify some of the things to which the witness testified. On TV, cross examinations make for high drama. In reality, there are few "Perry Mason" moments. Nonetheless, cross examinations are an essential tool for the defense, and they are conducted largely through leading, yes-or-no questions. The more exciting function of cross examinations is using them to impeach the witness. Impeaching a witness involves discrediting the veracity of a witness. Either party can impeach a witness. There are a number of ways this can be done, and one is to attack the witness's character. The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation but only as to the witness's character for truthfulness. Specific instances of the witness's conduct for truthfulness cannot be introduced with extrinsic evidence, unless it is done on cross-examination. The witness can also be impeached by evidence of a prior conviction. If the witness has been convicted of a crime punishable by more than a year in prison, evidence of that conviction can be introduced as can evidence of any conviction that involves dishonesty or false statements. If the conviction happened more than 10 years prior to the testimony, it can only be introduced in rare situations. Furthermore, if the conviction has been subject to a pardon, annulment, or certificate of rehabilitation, evidence of that conviction cannot be introduced. Another way to impeach a witness is to use his prior statements against him. For example, if, hypothetically, a witness testified at trial that his manager had authorized "cooking the books" but had initially admitted to investigators that he alone had authorized such activity, the defense would want to challenge his trial testimony. Prior inconsistent statements of a witness are admissible. This process occurs for each witness. First the direct examination, and then the cross examination, and in some instances, if the cross was extremely effective, a redirect will be allowed for purposes of rehabilitating the witness. After the government is finished with its case-in-chief, the defense can present its case-in-chief. In some instances the defense will not present one, if it feels that the prosecution has not proved that the defendant committed a crime. Most often, however, the defense will present its case-in-chief, and it functions exactly like the government's case-in-chief, except the defense conducts direct examination on its witnesses and the government conducts the cross examination. After the end of the cases-in-chief, the defense may file a motion for a judgment of acquittal. The court must "enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. The court might deny the motion, and leave it up to the jury. Jury Instructions At the end of the presentation of the evidence, or at any earlier time that the court reasonably sets, any party can request in writing that the court instruct the jury on the law. Either party can object to the form of the jury instructions, but it must give specific reasons for the objection. Whatever the case, the objection must be preserved for the purposes of appeal. Closing Arguments After the jury instructions are submitted, it is time for closing arguments. The government goes first, followed by the defense, followed by the government's rebuttal. This is the last chance before the jury goes into deliberations for either side to score some last minute points. Typically, it will rehash the opening statement, reminding the jurors that everything that was promised in the opening statement has been shown, whether it is the government claiming that it showed evidence of guilt beyond a reasonable doubt, or whether it is the defense saying that the government failed to meet its burden. Jury Verdict After the closing argument, it is time for the jury to deliberate on whether the defendant is guilty or not guilty. The verdict must be returned to the judge in open court, and it must be unanimous. If there are multiple defendants, the jury may return its verdict at any time during its deliberations as to any defendant about whom it has agreed. If there are multiple counts, but the jury cannot agree on all counts, it can still return a verdict on the counts on which it has agreed. If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts; the government can retry that defendant on those counts. If the defendant is acquitted, he is free to go. If he is convicted, he will want to file a motion for a new trial, and then it is on to sentencing. After the defendant is sentenced, he will likely file an appeal. Unlike state court, where a sentence is most often negotiated before a guilty plea, sentences in federal court are only determined by the judge after the plea is entered. The central element of the sentence determination is the recommended sentence range according to the Federal Sentencing Guidelines. Background of the Federal Sentencing Guidelines The Federal Sentencing Guidelines are rules that purport to set out a uniform sentencing policy for individuals convicted of crimes in the United States federal court system. The Guidelines are the product of the United States Sentencing Commission and are part of an overall federal sentencing reform package that took effect in the mid-1980s. The Federal Sentencing Guidelines two purported goals are to alleviate sentencing disparities that extensive research had indicated was prevalent in the previous existing sentencing system, and to provide for determinate sentencing. Determinate sentencing refers to a sentencing scheme whose actual limits are determined at the time the sentence is imposed. An indeterminate sentencing scheme is one in which a sentence with a maximum (and, perhaps, a minimum) is pronounced but the actual sentence is determined by a parole commission or similar administrative body after the person has started serving their sentence. As part of the guidelines reform, the United States Parole Commission was abolished. In general, indeterminate sentences are believed to support the rehabilitation and specific deterrence models of sentencing while determinate sentences are believed to support the general deterrence and just deserts models of sentencing. The federal effort followed guidelines projects in several states, initially funded by the United States Department of Justice, and led by Jack Kress and his research team during the late 1970s. The first sentencing guidelines jurisdictions were countywide, in Denver (Colorado), Newark (New Jersey), Chicago (Illinois) and Philadelphia (Pennsylvania). Statewide guidelines systems were next established in Utah, Minnesota, Pennsylvania, Maryland, Michigan, Washington, and Delaware, before the federal sentencing guidelines were formally adopted in 1987. Given that the vast majority of criminal sentencing is done at the state level, the American Law Institute and the American Bar Association have each recommended such systems for all the states. Nearly half the states presently have such systems, although significant variations exist among them. For example, Minnesota's Sentencing Guidelines Commission initially sought consciously not to increase prison capacity through guidelines. That is, Minnesota assumed that the legislature should determine how much would be spent on prisons and that the sentencing commission's job was to allocate those prison beds in as rational a way as possible. The federal effort took the opposite approach. It determined how many prisons would be needed and Congress was then essentially required to fund those beds. Though the Federal Sentencing Guidelines were styled as mandatory, the Supreme Court's 2005 decision in United States v. Booker found that the Guidelines, as originally constituted, violated the Sixth Amendment to the United States Constitution Sixth Amendment right to trial by jury, and the remedy chosen was excision of those provisions of the law establishing the Guidelines as mandatory. In the aftermath of Booker and other Supreme Court cases, such as Blakely v. Washington (2004), Guidelines are now considered advisory only, on both the federal and the state levels. Judges must calculate the guidelines and consider them when determining a sentence but are not required to issue sentences within the guidelines. Those sentences are still, however, subject to appellate review. Guidelines Basics The Guidelines determine sentences based primarily on two factors: (1) the conduct associated with the offense (the offense conduct, which produces the "offense level"), and (2) the defendant's criminal history (the "criminal history category"). Numeric values are assigned to each factor according to the rules set forth in the Guidelines—rules that attempt to account for the unique circumstances of each offense. These numeric values are then located on the Sentencing Table in the Guidelines Manual to arrive at a recommended sentence range in months. For example, a conviction where the offense level is assigned a value of 22 results in a sentence range of 41-51 months when the “criminal history category” is I (assigned to an offender with little or no prior criminal record). The same offense at a “criminal history category” of VI results in a Guidelines range of 84-105 months. A wide body of case law has been developed regarding each detail and definition pertinent to assigning these numeric values. For example, is the defendant a leader or organizer of the criminal transaction or did he play a minimal role? Was his cooperation such that the Government should move the court to depart from the guidelines and asses a lower sentence? For these reasons a federal defendant needs an attorney who is well-versed in sentencing procedures and the intricacies of the Sentencing Guidelines. In states without a guidelines system, such as Texas, it is even more important to consult an attorney who understands the federal system. FEDERAL APPEAL PROCESS An appeal generally occurs after a conviction when the defendant requests a higher (appellate) court to review the trial and determine whether errors were committed that require a retrial or acquittal. If the appellate court finds no reversible error the judgment is affirmed and the sentence must be served; if the court finds error that beyond a reasonable doubt contributed to the conviction or punishment, the case is reversed and a new trial or punishment hearing may be ordered. Sometimes, though rarely, a case may be reversed and the defendant ordered acquitted, that is, set free (e.g., state failed to provide sufficient evidence of guilt). There are numerous reasons for an appeal from a guilty verdict in a criminal case, including what's called "legal error." Legal error may include:
Almost every trial will contain some error. However, we are only guaranteed a fair trial, not a perfect one. Therefore, a trial court will only be reversed when the error is considered harmful, or one that is shown to affect the verdict or the punishment. The government is entitled to appeal a limited number of orders of a court in a criminal case. For example, the government may appeal an order dismissing all or any portion of an indictment or information, granting a new trial, or granting a defendant's pre-trial motion to exclude evidence or a confession. The state may not appeal from a judge's decision or jury's verdict finding a defendant not guilty of an offense. The first criminal appeal is decided by the Circuit Court of Appeals. A panel of three justices typically reviews the trial based on the printed record and the written arguments (briefs) prepared by attorneys for both sides. There are no witnesses and no new evidence may be presented. THE APPEALS PROCESS This process varies depending upon the crime, but there are always time deadlines by which you must file an appeal. The process is begun by filing a Notice of Appeal with the trial court. This must be done within ten days from sentencing or judgment date. If a motion for new trial is filed, the deadline is ten days from the day the motion is denied. The defendant must also make arrangements to obtain the record. This consists of the clerk’s record (a copy of all the documents filed with the court) and the reporter’s record (a transcript of everything said in court). After the record is prepared, the appellant, or the party asking for review, must prepare a brief detailing the errors complained of, the state of the law that applies to that type of error, and how that law applies to the facts of this particular case. The other side then has an opportunity to write a brief in response. The Court of Appeals has the option to either consider the case on the written briefs alone or to allow oral argument. In oral argument each side is given a short time to present their case and answer questions from the panel of judges. The Court of Appeals has no deadline for deciding an appeal. The actual length of time will depend on a variety of factors, but many cases take longer than a year. Further Review The party that loses in the Court of Appeals has the right to appeal to the United States Supreme Court. Unlike the first appeal which is a right, further appeals are discretionary. This means the Supreme Court can deny the petition for review without giving any reasons. Cases that are reviewed typically fall into one of two categories:those that present issues important to legal practice nationwide; or those where the appellate court decided the case in a way that conflicts with another appellate court. Any licensed attorney can handle an appeal, but many do not have the legal talent, experience or desire to perform the intense research and writing that is required. It is important to seek an attorney experienced in appellate law that can offer the wisest advice and most effective written and oral advocacy. An old wise lawyer once said “It takes a good trial lawyer to become a good appellate attorney.” If you or a loved one have been convicted of a crime, you can rest assured that the legal professionals at the Law Offices of Roderick C. White have thoroughly demonstrated the talent, experience, and earnest desire to both diligently and aggressively pursue your appellate rights. Contact us for a free initial consultation. |
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