1. Federal Criminal
Defense
Law Review CLE
December 8, 2011
Dallas, TX
By
John Teakell, Law Office of John R.
Teakell, Dallas, Texas
2. Federal Cases
More Complex
Larger, more significant
Larger Dollar Amounts
Traditionally, larger white-collar and large
drug trafficking
+ Public Corruption, Immigration, + Variety
3. U. S. Attorney’s Office
Field 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
5. Conspiracy/Scheme
Commonly 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
6. Conspiracy / Scheme
Difference
Conspiracy 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)
7. 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.)
11. 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
12. 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
13. 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
14. Arrest and Detention
Arrest
Pursuant 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
15. 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
16. 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
18. Show-and-Tell
From U.S. Attorney
Getting discovery or a “Road Map”
understanding of the evidence
against Defendant to make the
decision Pre-Indictment
19. 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
20. 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
21. 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
22. 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
23. 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
24. 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
25. 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
26. Cooperation
(Continued)
Proffer:
If
1. Solid case against client or
2. Client is “on the bubble”
Only downsides
1. Locked into version of facts
2. Government can independently investigate
areas of information if no agreement reached
27. 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.)
28. 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
29. Sentence Reduction
Rule 35, F.R.C.P.
After sentencing
Same as a Downward Departure
Motion, but this is after Sentencing
31. 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.
32. 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
33. U.S.S.G. Calculations
Example 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?
34. U.S.S.G. Calculations
Example 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.
35. 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.)
36. 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
37. 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)
