Federal Criminal Case Primer

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Federal Courts hear only certain kinds of criminal cases. Murder, robbery, burglary and theft cases go to the State Courts. The typical fare for the Federal Courts consists of drug cases, bank fraud, gun cases, child pornography and sex trafficking. Federal courts hear cases involving securities fraud, national security, insider trading, organized crime and more complicated frauds but these cases are less common. Federal Courts have the resources to handle bigger more complicated cases that the State Courts are less capable of handling.

Federal Courts are well funded. Federal judges and prosecutors are well paid. Court rooms are spacious and equipped with the latest technology. Judges have law clerks to assist them. Federal Court dockets are way less crowded than State Courts. Cases start on time. Federal law enforcement agencies have more resources than the local police. Federal prosecutors have the luxury of being more careful about the cases that they file. The United States Marshal Service provides security for the Federal Courts.

Sentencing in the federal system is governed by two sets of laws - the Sentencing Guidelines and mandatory minimums. Sentencing Guidelines are rules promulgated by the Sentencing Guidelines Commission. Application of the Guidelines results in a sentencing range stated in months. Factors that affect the Guidelines are things such as drug quantity in drug cases, loss amount in fraud cases, whether the defendant pleads guilty or is convicted at trial, and the defendant's criminal history. The Guidelines are advisory not mandatory. In imposing sentence, judges are required to consider the Guidelines but are not required to follow them. Individual judges vary in the extent to which they follow the Guidelines. Some Judges invariably adhere to the Guidelines and others follow them less often.


Mandatory minimum sentences apply in drug cases and certain types of gun and fraud cases. In drug cases, mandatory minimums are triggered by drug quantity. For example, if someone is caught transporting half a kilo of cocaine, he or she is facing a potential mandatory minimum sentence of five years. A mandatory minimum means that the sentencing judge lacks the ability to impose a sentence that is less than the mandatory minimum. Federal prosecutors have discretion to refrain from filing charges that call for a mandatory minimum certain offenders can avoid a mandatory minimum with something called the “safety valve”.  This requires them to give a truthful account to prosecutors of their own criminal conduct and that of others with whom they may have been involved. Once a mandatory minimum is removed from the case, the judge has discretion to impose a sentence that is lower than the one called for by the Sentencing Guidelines.

In federal criminal trials, prosecutors have a definite advantage and trials are often trial by ambush. Unlike State Court, the defense has no right to compel Government witnesses to submit to defense interviews before trial and prosecutors encourage their witnesses to refuse to cooperate with the defense. In Federal Court, prosecutors control the timing of discovery and it is not uncommon for the Government to provide the defense with witness statements and hundreds if not thousands of pages of documents shortly before trial. It's unfortunate that the judges allow prosecutors to get away with this but in most instances they do. Defendants who are convicted after trial, typically receive sentences that are significantly longer than sentences they would have received if they had agreed to plead guilty. This is referred to as the “trial penalty” or the “trial tax”. As a result, the majority of defendant choose to plead guilty rather than risk a much longer sentence after conviction at trial.

Federal court is a little more formal than State court. Attorneys must stand when speaking to the judge and are not permitted to leave the lectern and approach the lower bench, (clerk's station), without the judge's permission. Candor with the tribunal is very important and dishonesty can end a lawyer's career in federal court. The courtroom deputy manages the judge's calendar and arranges to get things scheduled. He or she can help to avoid scheduling conflicts and is someone that your lawyer needs to get to know. There are great federal judges and some that are not so great. Either way, federal judges are all powerful and appointed for life. Once the judge has made a ruling, continuing to quibble with the judge is likely to be counterproductive. Great and not so great, most judges respond well to lawyers who are competent and polite. Procedures vary greatly from district to district and your lawyer needs to be familiar with local practice and local court rules.

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Some things are time sensitive. Do you have a hearing date scheduled? Did you just receive a grand jury subpoena? Is some detective knocking at your door and asking you to come to the police station for an interview? If so, give us a call right away.

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