Federal Criminal Defense Law Review CLE December 8, 2011 Dallas, TX By John Teakell, Law Office of John R. Teakell, Dallas, Texas
Jun 24, 2015
Federal Criminal Defense
Law Review CLEDecember 8, 2011
Dallas, TXBy
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
IndictmentInitial 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
DetentionCourt can detain a Defendant
without bond if he is deemed a:1) Flight risk, or2) Danger to the community
Defendant is entitled to hearing – 3-5 days
Arrest and DetentionRebuttable 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 ChargeCooperation
Historical/DebriefActive
Clock Not RunningPlea 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 roleReducing quantity/dollar amountReducing 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