Federal Criminal Defense FAQ

Q: Is there any difference between a Federal criminal case and a State criminal case?

A: Yes. The Federal criminal laws are different from the State criminal laws. Federal criminal procedure and rules of evidence are also not the same as the State criminal procedure and rules of evidence. Federal criminal cases are prosecuted by the United States Attorney’s office. State criminal cases are prosecuted by the District Attorney’s office. Federal cases are usually investigated by a Federal agency such as the FBI, DEA, Secret Service, Homeland Security, or the IRS. Federal prosecutors generally have a smaller case load than State prosecutors and have more time to devote to their cases. Federal cases are usually brought after an extensive investigation and after an approval process in which the government determined that it had enough evidence to obtain a conviction. For these reasons and others, the conviction rate in Federal Court is over 90%.

Q: I didn’t do anything wrong. Do I still need a lawyer?

A: The unfortunate reality is that our criminal justice system is not perfect. Innocent people are convicted and sent to prison. Innocent people plead guilty and spend the rest of their lives with a felony conviction on their record just to avoid the possibility of being convicted at trial and the lengthy sentence that would result. If you have been questioned by any criminal investigator whether from the FBI, DEA, Secret Service, IRS or any other government agency, or if you think you are under criminal investigation, you need a lawyer to protect your rights. If you have been charged in a federal criminal case, rest assured that the government prosecutors have already decided that you are guilty and will make every effort possible to convict you and send you to prison. You need a lawyer with Federal criminal defense experience immediately.

Q: Should I just hire any lawyer for my Federal case?

A: Not all lawyers practice criminal law, and not all criminal defense lawyers practice in Federal Court. Federal criminal laws and State criminal laws are not the same. The procedures followed in Federal court are different from those followed in State court. If you have a Federal criminal case, you need a lawyer with experience and training in the Federal criminal laws, Federal criminal procedures, and especially the Federal Sentencing Guidelines.

Q: What happens after I have been arrested in a Federal criminal case?

A: Many Defendants are initially charged by Complaint; others are charged by way of an Indictment. The Defendant will be taken before a Magistrate Judge for an initial appearance on the day of his arrest or on the next day that court is in session. If the Defendant was arrested on a complaint, the Magistrate Judge will inform the Defendant of the Complaint against him, his rights including the right to counsel and right to remain silent, and will set a date for a Preliminary Hearing. If the Defendant was arrested on an Indictment, the Magistrate Judge will ensure that the Defendant has a copy of the Indictment and understands what he is charged with. The Defendant will enter a plea of not guilty to the Indictment.

Q: Will I be able to get a bond?

A: Getting a bond in a Federal case depends heavily on the nature of the charges against the Defendant along with the Defendant’s criminal history and ties to the community. You should consult a lawyer with federal criminal defense experience regarding a bond in your Federal case.

Q: What are the cases in which it is easiest to get a bond?

A: The Magistrate Judge will usually set a bond when a Defendant is charged with a non-violent offense carrying a maximum penalty of less than life in prison, or a drug offense carrying a maximum penalty of less than ten years imprisonment. This is especially true if the Defendant has significant ties to the community and a limited criminal history. The Court may set a bond at the Initial Appearance, or it may set a Detention Hearing within three to five days of the Initial Appearance.

Q: When is it difficult to get a bond?

A: It can be extremely difficult to get a bond in a Federal criminal case which involves a crime of violence, an offense that carries a life sentence, or a drug offense which carries a penalty of ten years or more. In these cases, there is a presumption that the Defendant poses a danger to the community and is a risk of flight. The government will move for detention and the Court will set a Detention Hearing within three to five days. At the hearing, the Defendant has the very difficult burden of proving that he does not pose a danger to the community and that he is not a flight risk. The Court will rarely set a bond for a non-citizen who is subject to an INS detainer. In the Northern District of Georgia, most Magistrate Judges will not even consider a bond unless the Defendant agrees to an interview with a Pretrial Services Officer. A Defendant can harm his case by agreeing to such an interview, or by admissions at the bond hearing. When it is unlikely that a Defendant will be able to get a bond, it is sometimes best to waive the Detention Hearing and not try to seek a bond. This is a complicated and difficult decision that should be made only after consultation with an experienced Federal criminal defense attorney.

Q: What happens after my Initial Appearance?

A: When a defendant has been charged by Complaint, he is entitled to a Preliminary Hearing within ten days. At the Preliminary Hearing, the government has the burden of introducing sufficient evidence to show that there is probable cause that an offense has been committed and that the Defendant committed it. Probable cause is a very low standard of proof and is easily met in most cases. However, the preliminary hearing is a good opportunity to learn more about the government’s case against the Defendant.

Q: What if the Court finds probable cause?

A: If the Court finds probable cause, it will order that the Defendant appear for further proceedings. If the Defendant is on bond, he will usually be allowed to remain on bond. If the Defendant is detained, he will remain in custody until his case is resolved.

Q: What if the Court does not find probable cause?

A: If the Court does not find probable cause, the charges against the Defendant will be dismissed and the Defendant will be free to go about his business. However, the government is still free to try to obtain an Indictment against the Defendant.

Q: What is an Indictment?

A: The Indictment is the formal charges against the Defendant. The U.S. Attorney’s office obtains an Indictment by presenting evidence to the Grand Jury which then issues the Indictment. A Defendant does not have a right to attend Grand Jury proceedings.

Q: What happens if I am Indicted?

A: If you were previously arrested on a Complaint and were released on bond, you will receive a notice to appear in court for Arraignment. If you are being held in jail, you will be brought to court for the Arraignment.

Q: What is an Arraignment?

A: At the Arraignment, the Magistrate Judge will make sure you have a copy of the Indictment and that you understand what you are charged with. You will also enter a plea of not guilty.

Q: What happens after the Arraignment?

A: After Arraignment, you and your lawyer will have the opportunity to review the discovery provided by the government, investigate your case, file any necessary pretrial motions, prepare your defense, and get ready for trial. During this time, your lawyer will meet with you to discuss your options, the strengths and weaknesses of the government’s case against you, any possible defenses, and how the Federal Sentencing Guidelines might apply to your case in the event of a conviction or plea of guilty. You will decide whether you want to proceed to trial or whether, after reviewing the evidence against you, you would be better off by entering a guilty plea and seeking a lesser sentence.

Q: Can I get a lighter sentence by pleading guilty?

A: It is always the defendant’s decision whether to proceed to trial or whether to enter a guilty plea. In most cases, a defendant will get a lighter sentence following a guilty plea than he would have received if he was convicted of the same offense at trial. However, this is a very complicated decision due to the Federal Sentencing Guidelines, mandatory minimum sentences for certain offenses, and a host of other issues. It is very important that you first consult with an experienced federal criminal defense attorney who has a thorough understanding of the Federal Sentencing Guidelines.

Q: Will the U.S. Attorney guarantee a specific sentence if I plead guilty?

A: One of the biggest differences between State criminal cases and Federal criminal cases is that, in the Federal system, there are no guarantees. Except in the rarest of circumstances, no one will ever guarantee you anything. You can enter into a plea agreement with the government, but the agreement is not binding on the District Court Judge. It only obligates the government to make certain recommendations that the Judge is free to ignore if he or she chooses. Further, if you do not like the sentence that the Court imposes, you do not have the right to withdraw your guilty plea and proceed to trial. Plea negotiations are very complicated and difficult in a Federal criminal case. This is why it is so very important that you are represented by an attorney with experience in Federal criminal cases.

Q: Is a federal criminal trial the same as a state criminal trial?

A: Federal criminal trials appear similar to State criminal trials. They begin with jury selection, followed by opening statements by the prosecution and defense attorneys in which each side has an opportunity to tell the jury what they expect the evidence in the case will show. The prosecution then calls its witnesses to testify, and the defense has an opportunity to cross-examine them. After the prosecution rests, the defense has the opportunity to put on its case if it chooses to do so. The Defendant always has the right to testify or not to testify on his own behalf. After the defense rests, the attorneys give closing argument and the jury then retires for its deliberations. However, although Federal trials are similar to state trials, there are important differences in the Rules of Evidence and Procedure between state and federal trials. You should have an attorney experienced in Federal criminal defense represent you at a Federal trial.

Q: How is sentencing handled in the Federal system?

A: If you decide to enter a guilty plea or you are convicted at trial, the Court will set a sentencing date about two or three months in the future. Before your Sentencing Hearing, a U.S. Probation Officer will prepare a Presentence Report which includes your personal information such as your family, education, and work history; the facts of your case, and a calculation of your sentence under the Federal Sentencing Guidelines. You and your lawyer will have an opportunity to review the Presentence Report and file any objections to the facts or to the guideline sentence calculation. The Court will rule on any objections at your Sentencing Hearing. Failure to object to the guideline calculation operates as a waiver as to that issue and could cost you years in prison. This is yet another reason why it is very important that you are represented by an experienced federal criminal defense attorney with a thorough understanding of the Federal Sentencing Guidelines.

Contact the Stockbridge law office of David R. MacKusick at 678-369-0761 (Toll-Free: 1-866-408-9426) to schedule a free initial consultation with an experienced Federal criminal defense attorney with a thorough understanding of the Federal Sentencing Guidelines.