FACTS FOR FEDERAL CRIMINAL DEFENDANTS
I. INTRODUCTION
The following is a short summary
of what will happen to you if you are charged in a federal criminal case. This
information is very general and does not apply to any particular criminal
charge. It is presented by the Eastern District of Michigan Federal Defenders
Office. This is not legal advice from the United States District Court or any
other federal agency.
II. SILENCE
Whether you are in custody or in
the "free world," one firm rule applies:
Do not discuss your case with anyone but your lawyer. Anything
you say will be used against you. This is true whether you talk to a police
officer, a person you just met in a holding cell, or a "friend."
Silence means: Do not discuss your cases with inmates or with anyone
on the telephone. ALL CONVERSATIONS FROM THE JAIL ARE RECORDED.
III. YOUR LAWYER
If you cannot afford to hire your
own attorney, you will be appointed a lawyer by federal law (18 U.S.C. §3006A,
The Criminal Justice Act). You will be appointed either a Federal Defender or a
Criminal Justice Act ("CJA") Panel Lawyer. Federal Defenders work in
an office that only represents federal criminal defendants. CJA Panel lawyers
are private lawyers approved to represent federal criminal defendants when
requested by the Court. A Magistrate Judge will determine whether you qualify
for appointed counsel.
A. Honesty
Defendants often believe it is better not to tell their lawyers the truth
about their case. This is not a good idea. Everything you tell your lawyer is
privileged and cannot be told to others. The best defense is one that prepares
for all the bad evidence the prosecutor may present against you at your trial.
Your lawyer must know all the facts. It is foolish to ignore the dangers and
simply hope everything will turn out all right. That is the sure way to be
convicted.
B. Bad
Advice If you are in custody, you will probably get a lot of
free advice from other inmates. Unfortunately, much of that advice will be
wrong. Many other inmates are in state custody and know nothing about federal
criminal law. Even the ones facing federal charges may give you bad advice
either because they do not know any better or because they want to mislead
you.
C. Respect
Treat your lawyer with respect, and that respect will be returned to you.
Lawyers are human beings who tend to work harder for clients who do not
mistreat them.
D. Telephone
Calls Be responsible about collect calls to your lawyer. You
cannot expect your lawyer to accept continuous collect calls from you. If you
have not heard from your lawyer for an unreasonable time, then either call and
request a meeting, have a friend or relative call and request a meeting, or
write a letter and request a response.
IV. RELEASE OR
DETENTION
The first thing to concerned about
is whether you are going to be released while waiting for trial. There is no
bond set automatically in federal court. Your family cannot simply pay a
bondsman to get you out.
A. Court
Appearance If you were arrested and taken into custody, you
will soon appear before a United States Magistrate Judge. This is not the
District Judge that will hear your trial. This Magistrate Judge will decide if
there are any conditions that would allow your release.
B. Pretrial
Report To assist the Magistrate Judge, a Pretrial Services
Officer will interview you and give the Magistrate Judge a written report
about your background and criminal history. The officer will not ask you about
the facts of your case. If you lie to the officer, it will hurt you later. If
you are not certain about whether to answer a question, ask to speak to an
attorney for advice.
C. Chance
for Release You are most likely to be released if you have
little or no criminal history, if you have solid employment, if you have
family ties in your community, if you are a United States Citizen, and if you
are not charged with a drug trafficking offense or crime of violence. Even if
you are not a good risk for release, the Magistrate Judge must still hold a
hearing and find reasons to keep you in custody. The only time this hearing is
unnecessary is when you are being held in custody for other reasons such as a
sentence in another case, a parole warrant, or a probation revocation warrant.
V. YOUR RIGHTS
When people talk about
"rights" in the federal criminal justice system, they are usually
talking about the fourth, fifth, sixth and eighth amendments to the United
States Constitution. These rights include freedom from unreasonable searches and
seizures, the right to remain silent, due process of law, equal protection under
the law, protection from double jeopardy, a speedy and public trial, the ability
to confront one's accusers, subpoenas for witnesses, reasonable bail, and
freedom from cruel and unusual punishment.
A. Case
law There are many books and thousands of cases that discuss
what these rights mean. The law is always changing. A court opinion written in
1934 by a Montana court of appeals is probably no help in your case. Your case
will mostly be affected by recent published opinions of the United States
Court of Appeals for the Sixth Circuit and the United States Supreme Court.
B. Application
Not all these rights apply in all cases. If you never made a statement to the
police, then it will not matter whether you were told of your right to-remain
silent. If you consented to a search of your car, then it will not make a
difference whether the police had a search warrant.
VI. CUSTODY
There are no benefits to being
locked up. Jail has many rules and regulations.
Some of those rules are made by
the jailers. Some of those rules are made by other inmates.
A. Clothing
Despite what others tell you, your lawyer cannot simply bring you clothing.
You will be permitted to change into street clothes only for a jury trial
appearance.
B. Other
Possessions Most items need to be purchased through the
commissary. You may keep legal documents in your possession.
C. Visits
Your friends and relatives must follow the jail's rules when making
appointments to visit you. You must put the names of these persons on your
visitation list. The jail requires visitors to make appointments at least
24-hours in advance.
D. Attorney
Visits Most defendants would like to see their lawyer as often
as possible. Because of the caseload each attorney has, it is not possible to
visit any particular client every time the client calls. This does not mean
your lawyer does not care about you or will not properly prepare your case for
trial.
VII. ARRAIGNMENT
At some point you will come to
court for an arraignment. This is the time when you enter a plea of "Not
Guilty."
A. Indictment
Before the arraignment you will have been indicted by a grand jury. Neither
you, nor your attorney, has a right to be present at the grand jury session. A
grand jury decides if there is enough evidence to have a trial in your case.
If there is not, then the case is dismissed. If there is probable cause to
believe that you committed a felony, the grand jury will issue an indictment.
An indictment is the document that states what the charges against you are.
B. Hearing
The arraignment takes place before a Magistrate Judge, not the District Judge
who will hear your case. The Magistrate Judge will ask you how do you plead to
the charges? Your lawyer will answer "Not Guilty." You cannot plead
"Guilty" at an arraignment. Pleading "Not Guilty" will
never be used against you.
VIII. SPEEDY TRIAL
Many defendants want a quick
trial. This is usually for two reasons. First, defendants who are in custody
want to get out of the county jail as soon as possible. Second, defendants
believe that if they are not tried within the Speedy Trial Act's 70-day time
limit then their cases will be dismissed.
A. Pretrial
Detention A defendant is rarely helped by going to trial as
soon as possible. The prosecutor is prepared to try the case when it is filed.
Your lawyer is only then beginning to investigate the case. Your lawyer does
not have access to all of the prosecutor's files.
B. Dismissal
There are many exceptions to the Speedy Trial Act. The usual reason why a
prosecutor requests a continuance is that there are co-defendants that have
not yet been arrested. The speedy trial deadlines do not even begin to run
until all charged defendants have appeared in court. Also, whenever any of the
defendants have filed motions, the time until those motions are decided is not
counted toward the speedy trial deadline. Cases are usually tried within the
speedy trial deadlines.
IX. TRIAL
A felony trial in federal court is
decided by twelve jurors. The jurors only decide if you are "Guilty"
or "Not Guilty" of the charges in the indictment. Jurors do not get to
decide punishment. The District Judge decides punishment.
A. Jury
Selection The trial begins with the selection of the jury. A
panel of potential jurors is called to court from voter registration and
drivers license lists. The District Judge asks questions of the panel, and the
panel also answers written questions. The lawyers are allowed to keep certain
members of the panel from sitting on the jury. The first twelve of the
remaining panel members become jurors, and the next two panel members become
alternate jurors.
B. Opening
Statements Before the evidence is presented, the lawyers may
make opening statements. During opening statements, the lawyers tell the jury
what they believe the evidence will show.
C. Order
of Proof The prosecutor presents evidence first. You are
presumed to be innocent until proven guilty beyond a reasonable doubt. You do
not have to present any evidence or testify. If your lawyer does put on
evidence, it will happen after the prosecutor has finished presenting the
government's case.
D. Rules
During the trial, the lawyers must follow the rules of evidence and procedure.
These rules are complicated. The rules can both help and hurt you. For
instance, the rule against hearsay evidence may prohibit a prosecutor from
calling a witness to testify that he heard about what you did. The same rule
can stop your lawyer from introducing an affidavit made by some person who is
unwilling to come to court and testify for you.
E. Prior
Acts Although you are only on trial for the charges in the
indictment, there are two ways the jury can learn about other accusations
against you. First, if you testify, then the prosecutor may be able to
introduce your prior convictions. Second, the prosecutor can introduce your
prior acts - even if they are not convictions - if they are similar to the
crime you are charged with (for example, prior drug sales in a drug
distribution case).
F. Final
Arguments After all the evidence has been presented, the
lawyers argue the facts to the jury.
G. Jury
Deliberations Jurors are usually average working people from
the community. They are not specially trained in law. They use their common
sense when deciding the case. Although the District Judge will instruct them
about "the presumption of innocence" and "proof beyond a
reasonable doubt," jurors rely on many things in coming to a decision in
a case. Jurors often rely on things they are not supposed to, such as: the
appearance of the defendant, the defendant's character, their own biases and
prejudices. There is nothing to stop them from doing this, and they cannot be
questioned about how they reached their decision.
H. Verdict
If you are found "Not Guilty," you will be released. If there is a
"Guilty" verdict, then the District Judge will order the Probation
Department to prepare a Presentence Investigation Report to assist the
District Judge at sentencing. It takes approximately three months between a
conviction and sentencing, unless you had an expedited presentence interview
[See Section XIV (D)].
I. Release
If you were previously on pretrial release, the District Judge may continue
that release until sentencing, unless you were convicted of a crime of
violence or a drug trafficking offense.
X. GUILTY PLEAS
Statistics show that most
defendants plead guilty. You make the decision to plead guilty. That decision is
never simple. Some possible benefits of a guilty plea are that: the prosecutor
may dismiss some charges; the prosecutor may not file new charges; the
prosecutor may recommend a favorable sentence; you may get credit for accepting
responsibility, etc.
A. Plea
Agreement Any promises the prosecutor makes for your guilty
plea will be put in a written plea agreement. That agreement is signed by you,
your lawyer, and the prosecutor. Some plea agreements require you to waive
your right to appeal a sentence, unless it is above the sentencing range
determined by the Federal Sentencing Guidelines.
B. Plea
Hearing You must enter a guilty plea in court before the
District Judge. The District Judge must ask you many questions so the record
shows you understand what you are doing. During the hearing, the prosecutor
will briefly tell the District Judge the facts of the case. You must agree to
those facts for the District Judge to accept your guilty plea.
C. Effect
of Plea Once the District Judge accepts your plea, you are
just as guilty as if a jury returned that verdict. Once you are convicted of a
felony, you lose the right to vote, the right to hold public office, the right
to sit on a jury, and the right to possess firearms.
D. After
Plea The procedure after a guilty plea is the same as after a
conviction at trial. A Presentence Investigation Report will be ordered and
you will be either released or detained until sentencing [see section X(I)].
XI. COOPERATION
Some defendants give prosecutors
information against other persons for the possibility of a reduced sentence.
There is no guarantee that a defendant will get a lower sentence for
"giving people up." Cooperation can be dangerous and it usually
requires a defendant to set up others or testify in court.
XII. OTHER CHARGES
Often, federal defendants are
first arrested by state officers on state charges. Sometimes, even when federal
charges are filed, the state charges are not dismissed. It is possible to be
convicted of both state and federal charges for the same offense. This is not
double jeopardy. It is also possible to get "stacked time" (a
consecutive sentence), by pleading guilty to an unrelated state or federal case
before getting a conviction in your federal case. Be careful not to do anything
about your other cases without telling your attorney.
XIII. SENTENCING
Sentencing takes place
approximately three months after you have been convicted by a jury or guilty
plea, unless you had an expedited presentence interview [See below (D)]. The
District Judge decides the sentence. Unlike state court, you cannot simply agree
with the prosecutor to serve a particular amount of time or probation.
A. Federal
Sentencing Guidelines The District Judge decides your sentence
based upon a book called the Federal Sentencing Guidelines Manual. That book
works on a point system. You get points for the seriousness of the offense and
your role in the offense. Points may be subtracted if you accept
responsibility for the offense or if you were only a minor participant. The
Manual also considers your criminal history. Your criminal history is the
record of your prior convictions in state and federal courts. A chart at the
back of the Manual determines your sentencing range, based upon your criminal
history points and the points you received for the offense conduct.
B. Mandatory
Minimum Punishments Some drug and firearms cases have
mandatory minimum punishments. These minimum punishments apply even if the
Federal Sentencing Guidelines would otherwise give you a lower sentence.
C. Departures
If the District Judge sentences you to more or less time than your sentencing
range, it is called a "departure." The District Judge must have a
good legal reason for a departure. The District Judge cannot depart downward
below a mandatory minimum punishment, unless the reason is that you have
provided substantial assistance to the government in the prosecution of
others.
D. Presentence
Investigation Report Before the sentencing hearing, the
District Judge will review a Presentence Investigation Report prepared by a
probation officer. That report summarizes the offense conduct, your criminal
history, and other relevant background information about you. Most important,
the report calculates a range of punishment for the District Judge to consider
in your case.
The probation officer creates the
report based upon information from the prosecutor, independent investigation,
and an interview with you in the presence of your lawyer.
1. Interview
It is important to be honest with the probation officer at the presentence
interview. If you mislead the officer, you may increase your sentence for
"obstruction of justice." Also, you will not get credit for
accepting responsibility unless you talk truthfully about your crime. Do not
talk about any other conduct for which you have not been convicted, unless
your lawyer tells you to.
2. Objections
Before the District Judge gets the Presentence Investigation Report, it will
be sent to your lawyer. Your lawyer will bring it to you for your inspection.
If there is anything incorrect about the report, your lawyer can file
objections. Some mistakes are more important than others. If the report says
your car is red rather than blue, that is probably not important. If the
report says you have five (5) prior felonies when you do not, that is
important.
E. Sentencing
Hearing At the sentencing hearing, the District Judge will
review your objections to the Presentence Investigation Report and make
findings about any facts or legal issues that cannot be agreed upon. Your
lawyer will address the legal issues and point out the facts in your favor.
District Judges usually do not like to hear from relatives who are just there
to plead for a reduced sentence, but their presence is welcome. Letters of
recommendation and other helpful evidence should be provided to your lawyer
well before sentencing so the District Judge can see them before the hearing.
Before the District Judge pronounces the sentence, you can speak. You should
speak only if you are going to say something about being sorry for the crime.
It is a bad idea for you to start claiming innocence or making excuses at
sentencing. It is better to say nothing.
F. Concurrent
and Consecutive Sentences No area of law is more confusing to
defendants and lawyers than whether multiple sentences (more than one), may be
served at the same time (concurrent), or one after another (consecutive).
1. Present
Charges If your federal indictment has several related
charges, and you are convicted of them, you will probably serve these
sentences at the same time. However, it is possible for the District Judge
to "stack" convictions so each must be served before another
begins.
2. Other
Charges Sometimes a defendant is already serving a sentence
before being convicted in a federal court. Usually, the federal sentence
will be consecutive.
XIV. VOLUNTARY
SURRENDER
If you were on release until
sentencing, you may be allowed voluntary surrender. This means about four to six
weeks later you will report directly to the federal prison designated for the
sentence. Otherwise, you will go directly into custody after sentencing, if you
received a prison sentence.
XV. APPEAL
An appeal is not a new trial. An
appeal is a review of your case by the United States Court of Appeals for the
Sixth Circuit, which is located in Cincinnati, Ohio. You may only appeal after
you have been sentenced. Transcripts of all testimony, and all the legal
documents in your case, are sent to the Court of Appeals. The Court of Appeals
decides whether the District Judge made any mistakes in ruling on the law in
your case. If the Court of Appeals decides there was some important mistake made
by the District Judge in your case, the usual remedy is that you will be allowed
to have a new trial or a new sentencing. That is called a "reversal."
It does not happen often. It is nearly impossible to be released while your
appeal is being decided.
XVI. PROBATION
Probation means your term of
imprisonment is suspended. You must follow restrictive conditions and report to
a probation officer. Probation is not available for most federal drug
trafficking crimes. Except minor fraud cases, most federal defendants do not get
probation. "Shock Incarceration" or "Boot Camp" is not
probation. That is a military discipline program followed by time in a halfway
house. It is available mostly to young, nonviolent, first-time offenders.
XVII. PRISON
Most defendants who are sentenced
to prison go directly into custody or remain in custody. Where the sentence will
be served, depends on several factors.
A. State
Custody If the reason you first came into custody was a state
charge, a state parole warrant, or state probation revocation warrant, then
you are in state custody, not federal custody. Neither the United States
Marshal, nor the District Judge, has the authority to take you from state
custody so that you may begin serving your sentence in a federal institution.
This means you will remain in the county jail or the Michigan Department of
Corrections until the State of Michigan (or whatever other jurisdiction you
owe time), is done with you. Even if you got a federal sentence that is to run
at the same time as your previous sentences [see Section XIV(F)], you will do
that time in the other jurisdiction's prison.
B. Federal
Custody You are in federal custody if you were arrested on a
federal warrant. It does not matter that you are being held in the county jail
or that state charges or revocations are later filed.
C. Designation
If you are in federal custody, then a federal institution must be designated
for your sentence. This designation takes about four to six weeks and is made
by the Federal Bureau of Prisons. During that time you will probably remain in
the county jail. The decision about where you will go depends upon the
seriousness of the crime, your criminal history and the location of your
family, among other things. A recommendation by the District Judge to send you
to a particular place is not binding on the Bureau of Prisons.
D. Good
Time Credit The Bureau of Prisons can give you up to 54 days a
year of "Good Time Credit." This is time subtracted from your
sentence. The credit is a privilege for good behavior, not a right. It does
not begin to be computed until after your first year in prison or shortly
before your release date, whichever is first. However, your time will be
reduced by 47 days a year by Bureau of Prisons interpretation of the credit
statute.
E. Release
There is no parole in the federal criminal justice system. You will serve most
of your sentence, minus Good Time Credit. The Bureau of Prisons often places
prisoners in a halfway house when there is 6 months or less on their
sentences. You will begin a term of supervised release after you are released
from custody. Like probation or parole, supervised release means you have to
follow rules and report back to a probation officer. Violating supervised
release can mean going back to prison.
XVIII. CONCLUSION
The above information is only very
general advice. There may be special rules that apply to your particular
situation. You need to talk about the specific issues in your case with your
lawyer. Every case is different.
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Wednesday, December 07, 2005