Federal Criminal

DefenseLaw Review CLE

December 8, 2011

Dallas, TX

By

John Teakell, Law Office of John R.

Teakell, Dallas, Texas

Federal Cases

More Complex

Larger, more significant

Larger Dollar Amounts

Traditionally, larger white-collar and large

drug trafficking

+ Public Corruption, Immigration, + Variety

U. S. Attorney’s OfficeField Office of DOJ

Autonomy in Prosecution, limited exceptions

U.S. Attorney = Presidentially appointed

Assistant U.S. Attorneys known as “AUSA”s

Agency asks U.S. Attorney’s Office to concur

with investigation before time and effort spent

Involved in early stages of

investigation, unlike State cases

AGENCIES

FBI

DEA

U.S.P.I.S.

IRS - CID

OIG’S

Conspiracy/SchemeCommonly Used Charges

Conspiracy

Two or more persons

Agree to do something illegal

One overt act attempted

U.S. v. Coleman, 609 F.3d 699 (5th Cir. 2011)

(Gov’t. must show 1) agreement between two (2) or more

to pursue an unlawful objective, 2) defendant’s knowledge of objective

and voluntary agreement to join, and 3) an overt act by one or more

members of the conspiracy in furtherance of conspiracy.

Scheme

Similar, but can be only one person

e.g., bank fraud scheme, mail fraud scheme

Conspiracy / Scheme

DifferenceConspiracy by definition is two (2) or more persons

Scheme can be one person

Similarity Co-Schemers are/can be liable for the acts

of participants, as in a conspiracy

U.S. v. Green, 592 F.3d 1057 (9th Cir. 2010)

CONSPIRATOR LIABILITY

“Pinkerton” Liability

Generally, co-conspirators liable for acts of other co-conspirators

U.S. v. Jimenez, 509 F.3d 682 (5th Cir. 2007) (Pursuant to the Supreme Court’s decision in Pinkerton, a conspirator can be found guilty of a substantive offense committed by a co-conspirator and in furtherance of the conspiracy, so long as the co-conspirator’s acts are reasonably foreseeable.)

Investigations

Local Authorities/Local Arrests

Task Forces

Informants/Cooperators

Wiretaps

Administrative/Civil Cases

Charging Process

Complaint

Target Letters

Grand Jury Indictment

Jurisdiction

Where crime was committed

Where criminal activity occurs/finishes

Indictment and Grand Jury

Grand Jury

Secret proceeding

Crime to communicate w/ GJ to influence

Often seen as a “rubber stamp” for prosecutors

GJ may see records and hear testimony prior to

a proposed Indictment to “return”

Burden of proof = probable cause to believe

that a crime was committed

Indictment and Grand Jury

Federal grand jury composed of 16 – 23

members

At least 12 members to concur that probable

cause was established to return an

Indictment

Not concerned with whether proposed

defendants are guilty or not guilty

Governed by Rule 6, Federal Rules of

Criminal Procedure

Indictment and Grand Jury

INDICTMENT

Charging document which makes allegations against defendants

Contains a statement of facts constituting an offense

Must list the citation of the relevant statute

Governed by Rule 7, Federal Rules of Criminal Procedure

Arrest and Detention

ArrestPursuant to a warrant issued after the

Indictment

Initial Appearance before a U.S. Magistrate Judge

Apprise Defendant of charges against him

Learn from U.S. whether it seeks to detain Defendant without a bond

Determine if Defendant has counsel or will hire counsel

Arrest and Detention

Detention

Court can detain a Defendant without

bond if he is deemed a:

1) Flight risk, or

2) Danger to the community

Defendant is entitled to hearing – 3-5

days

Arrest and Detention

Rebuttable Presumption

In drug cases, if a potential sentence is ten (10) years

or more, then a rebuttable presumption exists that the

Defendant should be detained 18 U.S.C. §3142

Burden to show Defendant should NOT be

detained shifts to the Defendant

Common for drug case defendants to be detained

Personal Recognizance Bond – promise to appear/no

$

Often given to non-violent, first-time offenders

Pre-Indictment

Client Status

Target

Subject

Witness

Show-and-TellFrom U.S. Attorney

Getting discovery or a “Road Map” understanding of the evidence against Defendant to make the decision Pre-Indictment

Determine If Good Case

Against Client v. Trial Case

If so:

Negotiate Re: U.S.S.G.

Negotiate Charge

Cooperation

Historical/Debrief

Active

Clock Not Running

Plea of Guilty at Some Point

If Questionable Case for

Government

Consider:

Presenting information to AUSA in attempt to “kill” the investigation

Affidavits, records, examinations

At least minimize by:

Reducing role

Reducing quantity/dollar amount

Reducing charge

Pleas of Guilty

Hearing Plea of guilty has to be voluntary

There has to be a factual basis

Pre-Sentence Report

May be delayed if cooperating

Rule 11, Federal Rules of Criminal Procedure require record at plea hearing

Pleas of Guilty

Rule 11 Requires Advising

False statements used against defendant in perjury case

Right to plead not guilty

Right to jury trial

Right to counsel

Right to a trial, to confront evidence

Waiver of these rights upon plea of guilty

Pleas of Guilty

Rule 11 Requires Advising (Cont’d.)

Nature of each charge Application of USSG

Maximum penalties Any waiver of appeal

Any mandatory minimum penalty

Any forfeiture

Possible restitution

Special assessment

Plea Agreement

Plea to Which Count

Waiver of Rights -- usually waiver of appeal

Some Districts do stipulated facts within the Plea

Agreement, as opposed to separate document

Do you need a Plea Agreement?

Many today are one-sided in favor of government

Do Agreement if amending charge, stipulating to non-

enhancements, or agreeing to no further prosecution

Cooperation

Pre-Indictment:

If determine a good government case

Determine what USAO needs or believes your client can do

Not under time concerns that may be present for Indicted Case

Post-Indictment:

If determine a good government case

Cooperation(Continued)

Proffer:If

1. Solid case against client or

2. Client is “on the bubble”

Only downsides1. Locked into version of facts

2. Government can independently investigate areas of information if no agreement reached

Cooperation(Continued)

U.S. Sentencing Guidelines §1B.1

Immunity Agreement Transactional Immunity – regarding a/the

transaction

Limited Use Immunity – regarding testimony/statements

U.S. v. Ramos, 537 F.3d 439, 45` (5th Cir. 2008) (Transactional immunity prevents prosecution for crimes; use immunity prevents the use of testimony in prosecution for crimes.)

Downward Departure

“Substantial Assistance” Ch. 5, Part K, USSG

(“5K.1”)

Motion filed by U.S. to depart downwardly from

U.S.S.G. point level

Court’s decision regarding sentence reduction

One-third off standard; sometimes more

Court could vary if no Downward Departure

Reason specified in the record

Sentence Reduction

Rule 35, F.R.C.P.

After sentencing

Same as a Downward Departure

Motion, but this is after Sentencing

Trial/Litigation

Motions

Investigation

Legal Arguments

Witness / Exhibit Lists Filed

Voir Dire Conducted by Judge

Trial

Speedy Trial Act

Requires trial within 70 days, or case

reversed or sentence vacated or

dismissed -- U.S. v. Burrell, 634 F.3d 284 (5th Cir.

2011)

Tolling of Time Motions, unavailability of defendant, necessary

continuances, last co-defendant in, etc.

Sentencing Calculations

U.S. Sentencing Guidelines = Advisory

Calculate the Offense Level, then Sent. Table

U.S.S.G., first see Base Level

Then add Quantity or $ Amount Points

Plus Other Enhancements, e.g., Abuse Trust

Work on variance if no departure

Defendant’s Sentencing Memo

U.S.S.G. CalculationsExample of Fraud Case

Frauds, Embezzlements, etc. – 2B1.1 U.S.S.G.

Dollar Loss = Over $1MM but less than $2.5MM

More than 50 victims

Abuse of Position of Trust or Skill

Base Level = 7; + 16 for $ Loss; + 4 for Victims; + 2

Abuse of Position of Trust = 29, which is 87-108

months Category I

Minus 3 Accept. Respons. = 26 in Cat.I = 63-78 mos.

Reduction further?

U.S.S.G. CalculationsExample of Drug Case

Trafficking and Possession 2D1.1 of U.S.S.G.

2 kilograms of “crack” (cocaine base)

Organizer/Leader

Weapon possessed

Drug Quantity Table Level – 36: + 2 Weapon; + 3 Leader/Manger from 3B1.1 U.S.S.G. = 41= 324-405 mos. Cat. I

Minus 3 Acceptance Resp. and Minus 2 for “Safety Valve” (if not deemed an Org/Leader/Mgr) = 36 = 188-235 mos Cat. I

Reduction further? If convicted at trial and testify, no accpt + could add 2 points for Obstruction of Justice 3C1.1 U.S.S.G.

Relevant Conduct

In U.S. Sentencing Guidelines

“Relevant Conduct” can increase Guidelines calculations

on dollar amounts and drug quantities

Relevant Conduct is similar conduct that is not charged in

the Indictment that comes from credible sources

“Credible” will be decided by the court

If Defendant proffers to government and tells of relevant

conduct prior to government’s knowledge, it will not be

included in calculations (1B.1 of U.S.S.G.)

Death Penalty Cases

Have to be Eligible as Death Penalty Case

Request Permission from Attorney General

Formal process

Make Presentation to A.G.’s Panel after Written Appl.

Defense Counsel has Opportunity to Make Presentation

Eligible if: Heinous murder; Murder of Gov’t. Witness;

Murder During Trafficking; Mass Deaths; National Security

Secrets

Variety of Factors A.G. Considers

Appeal Overview

Notice of Intent to Appeal – filed within ten (10) days

From issuance of Judgment

Standard of Review

If objections at trial, then abuse of discretion and harmless error

If no objection at trial, then generally the standard is plain error

Demonstrate reversible plain error by

1) Showing error; 2) it is plain; and 3) affected substantial rights

Appellate Ct. generally does not reverse unless plain error seriously affects the fairness, integrity or reputation of proceeding. U.S. v. Garcia, 522 F.3d 597, 599-600 (5th Cir. 2008)

Misc.

Pre-Trial Diversion

Misdemeanors

“11(c)(1)(c)” plea

“Business decision”

Home detention / Halfway house

Parallel Investigations

“Reasonably foreseeable” drug quantities