Federal Criminal Defense:

There are many Orange County criminal defense attorneys but very few have experience in federal court. Even fewer have handled more than one or two cases in federal court over the course of their career. Diane Bass has been practicing in federal court for 17 years. Ms. Bass has handled every kind of federal criminal case. She has developed relationships and earned an outstanding reputation and credibility with Judges and Prosecutors in Federal Court which benefits her clients greatly.

What is different about Criminal Cases in Federal Court?  (Toto We’re not in Kansas anymore!)

Almost everything about defending a criminal case in federal court is different from state court.

The Sentences are Longer

The Rules are Different

The Procedures are Different

The Laws are Different

The Filing Process is Different

Posting Bail is Different

The Investigations Take Much Longer

Federal Sentencing

Sentencing is a large part of federal criminal defense for a number of reasons.

First: Most federal criminal cases settle. Only 2% of cases proceed to trial. The federal government generally does not file cases that they can’t prove. Federal agents almost always conduct very thorough and lengthy investigations before the U.S. Attorney’s Office files a case.

Second: The Federal Sentencing Guidelines, which are discussed in greater detail in the section on Federal Criminal Defense, (link) result in substantially harsher punishment than one would meet in a criminal case in state court for the same conduct.

Third: If a client enters a guilty plea, the most important part of my job as a criminal defense attorney is to ensure that my client receives the most reasonable sentence possible given their particular situation.

Some lawyers hire others to prepare their sentencing memoranda for them. If you are an attorney who is reading this, I am happy to help.

I begin the work of preparing for sentencing from the minute my client tells me they want to settle their case or take a deal.

I have 17 years of experience in Federal Sentencing. I have obtained outstanding results for many of my clients based on my years of experience and training in this area.

The most significant difference is that sentences in federal court are based on a set of guidelines called the United States Sentencing Guidelines.

What are the federal Sentencing guidelines?

The Federal Sentencing Guidelines are a set of guidelines that were drafted by the United States Sentencing Commission in an effort to establish a uniform sentencing policy across the United States.

federal-sentencing-guideline-chart In the simplest of terms, each offense for which there is a statute in federal court, carries a certain number of levels. Those levels correspond to a certain number of months that a person can serve in federal prison. The court then calculates a person’s criminal history category based on a formula depending upon how many convictions, if any, a person has and how much time the person served in jail or prison for those convictions, if any. In most cases, only convictions which occurred in the last 10 years count towards this calculation, however, there are exceptions. Depending upon the number of levels for the offense, and the criminal history category, a certain number of months are considered as the starting point for any sentence in federal court.

If you look at The Federal Sentencing Guidelines Chart you will see the offense levels on the left side of the chart. The criminal history category is on the top of the chart. The numbers in the middle of the chart are the number of months that correspond with that offense level and that criminal history category.

Different Kinds of Crimes Have Different Guidelines.

Fraud and Theft Crimes

2b1.1 The sentences for cases involving any kind of fraud or theft are based on the theft guidelines which are found in section 2B1.1 of the federal sentencing guidelines.  Sentences have a base offense level and then the sentence is increased based on the amount of loss caused by the offense. I know this sounds confusing but it will become clear as you keep reading, especially if you refer to the charts.

The offense level is reduced by 3 levels in most cases, for acceptance of responsibility if you plead guilty.

Other adjustments to the offense level can be added depending upon the number of victims. If the theft involves 10 or more victims, 2 levels are added. If the theft involves 50 or more victims, 4 levels are added. There are several other categories that are taken into consideration when determining the offense level.

If the case is charged as a conspiracy, which fraud cases often are, an adjustment can be made for the person’s roll in the offense. If someone is an organizer or leader of criminal activity that involved 5 or more persons, the offense level is increased by 4 levels.

On the other hand, if someone is a minor or minimal participant in the scheme, their offense level may be decreased by either 2 or 4 levels.

For example:

If you are charged with fraud and the amount of loss is $400,000 and you have no prior criminal convictions, you are the organizer of the conspiracy and you plead guilty, the calculation looks like this:

Base offense Level:   +7

Adjustment for Loss: +14

Adjustment for Roll in the Offense +4

Adjustment for Acceptance of Responsibility -3

Total Offense Level:   22

Criminal History Category I

Sentencing Guidelines Range: 41- 51 months.

Drug Crimes

The sentencing guidelines for drug crimes or narcotics offenses work the same way that the theft guidelines work except the calculation is based on the amount and quantity of the drug. Methamphetamine, Marijuana, Cocaine, Heroin, MDMA, Pseudoephedrine and other narcotics are each assigned a certain number of levels depending upon the number of grams or kilos. The chart for these guidelines much more lengthy and complex.

What about Mandatory Minimums?

In drug cases, the sentencing guidelines only come into play if there is not a mandatory minimum sentence.

Many drug offenses carry mandatory minimum sentences of either 5 or 10 years depending upon the type and quantity of the narcotics. If someone has prior convictions for drug trafficking offenses, the mandatory minimum could be 20 years or even life.

Is there a way to get around the Mandatory Minimum?

There are only two ways to get below the mandatory minimum in drug cases.

  1. The first way is if you qualify for what we call “Safety Valve.” Safety Valve is applied if five specific factors exist:
  • the defendant does not have more than 1 criminal history point;
  • the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
  • the offense did not result in death or serious bodily injury to any person;

(4)    the defendant was not an organizer, leader, manager, or supervisor of others in the offense, and was not engaged in a continuing criminal enterprise; and

(5)    not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.

If the defendant meets all of these criteria, then the sentence is calculated with the sentencing guidelines and is eligible for a reduction of the sentence for a minor or minimal roll in the offense.

  1. The second way to get around the mandatory minimum sentence in drug cases is to provide substantial assistance to the government. This involves providing information in the prosecution of others.

What else does the court consider at sentencing?

Once the court establishes the sentencing guideline range, the court must consider the factors set forth in 18 USC section 3553 (a).   Those factors are as follows:

  • the nature and circumstances of the offense and the history and characteristics of the defendant;
  • the need for the sentence imposed—

(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;

As a criminal defense attorney, the most important of these factors is the history and characteristics of the defendant.   I have numerous conversations with my clients to learn as much about them as possible. We all have a unique story. Many people have had a great deal of hardship, tragedy and even abuse that they have overcome. Many also have done extraordinary things for their community. Most people have family who rely on them and their absence would cause a great deal of hardship, especially if they are the sole breadwinner for their family or caregiver for a family member.   These are mitigating factors that I argue at the time of sentencing in every one of my cases.

What is the process in a federal case?

The Investigation

How Does an investigation Get Started?

Most Federal Cases are initiated by a Federal Agency who opens an investigation into a person or persons about whom they have either received information.   For instance, most fraud investigations are started after the FBI receives a complaint from someone who lost money either in an investment or Ponzi scheme, they paid up front fees for a loan modification and lost their home. Sometimes a bank officer will contact the FBI because they see something suspicious during a transaction.

In Securities Fraud cases, the investigation will often be instigated by the filing of a civil action or lawsuit by the SEC.   As soon as a civil action is initiated it is time to hire an experienced federal criminal defense attorney.

In Medicare Fraud or Medical Billing Fraud Cases, either a patient will complain to Medicare about items billed on their explanation of benefits form or Health and Human Services will notice a sudden increase in billing.

IRS investigations for tax evasion generally flow from an underlying investigation. The IRS may be brought in by the other agency investigating the case.

Investigations can also be initiated as a result of a cooperating defendant or “snitch”.

How Long Does an Investigation Take?

Federal Criminal Investigations can take years.   During this time it is easy to think that no charges will be filed and that you don’t need an attorney. This is one of the biggest mistakes you can make. It is critical that you hire an experienced federal criminal defense attorney the minute you learn that you are under investigation.

Once an investigation is opened, federal agents will usually interview witnesses and obtain search warrants to obtain bank records, phone records, business documents, email accounts, and any number of other items that might contain evidence of the suspected crime.

Many times individuals who are under investigation or who are “targets” of a federal investigation, will learn of the investigation because someone who was interviewed by an FBI agent tells them that they spoke to a federal agent. Often times someone will learn of the investigation when a search warrant is executed on their business or home.

The biggest mistake someone can make is to do nothing when this happens!

The FIRST THING YOU SHOULD DO if a federal agency contacts you or someone you know and asks questions about you, or if a search warrant is executed is to CONTACT AN EXPERIENCED FEDERAL CRIMINAL DEFENSE ATTORNEY.

Why do I need a lawyer before I’ve been charged with a crime?

The BEST time to resolve a Federal Case is before it is filed.

First: If you and your attorney meet with the Assistant U.S. Attorney and the federal agent who is in charge of your case before the case is filed you can quite possibly work out a deal where the government agrees not to file certain charges. Much of the time the U.S. Attorney’s office will agree not to file money laundering or tax evasion charges in addition to fraud charges. They will also often agree to “stop counting” the amount of loss, thereby keeping the sentence down. The government may know about additional conduct that would increase your sentence but they may not investigate any further and agree to let you accept responsibility for what they know about at the time you come forward.

Additionally, if you are going to “cooperate” or provide the government with information about others involved in the conduct, you get the first bite at the apple and potentially a significant reduction in your sentence for the information and assistance you provide. You always want to be the first one in the door if you intend to cooperate.

Why would the government be so generous? Because you are saving them a lot of work. In order to obtain an indictment, the Assistant U.S. Attorney has to go to the grand jury to obtain a “true bill”.   It is not, as some people think, that the US attorney’s office doesn’t have enough evidence or that they can’t prove their case. It is because it saves them the time and resources of doing that.

Second: You get to walk into court rather than being arrested.   Most of the time, if you have worked out a pre-indictment resolution, the U.S. Attorney will agree to a bail amount before you go to court for the first time and they will allow you come to court on a summons rather than having the U.S. Marshalls come to your house at 6:00 in the morning and arrest you in front of your family and neighborhood.

What happens when I go to court?

The Initial Appearance or Arraignment

If you have been indicted or have entered into a pre-indictment deal with the government, your first appearance in court will be an arraignment. During that hearing, you will enter a plea of NOT guilty and your case will be randomly assigned to a District Court Judge and you will be given a trial date.

Bail will be determined at the initial appearance as well. Preferably, your lawyer and the U.S. Attorney will have come to an agreement about the amount of the bond prior to the hearing. However, even if that is the case, Pre-Trial Services will conduct an interview of you and any possible sureties and they will make an independent recommendation to the court about an appropriate amount of bond. If bail is granted, the paperwork for unsecured bonds is completed right there in court. If property is to be deeded, the court will usually allow a week or two to complete the deeding of property.

You will then be assigned a pre-trial services officer who will supervise you while you are out on bond. You will have to check in with them in person once a month and via telephone once a week. You will have to notify them of any change of employment or residence. You will have to seek permission to travel outside of the district. You will also have to surrender your passport if you have one.

Before you leave the court after your first appearance, you will go to the U.S. Marshall’s office in the courthouse and go through the booking process. This consists of filling out paperwork, fingerprinting and having a booking photo taken.

Posting Bail in Federal Court:

The federal court does not accept bail bonds in the same way that they do in State Court.   There are two types of bail bonds in Federal Court, Signature Bonds and Property Bonds. Signature bonds are unsecured bonds very similar to a promissory note, usually signed by a responsible third party. Property Bonds or a Bond that is secured by property, requires the deeding of property to the court. There are also cash bonds but those are quite rare.

Signature bonds are simple and are completed in the courtroom at the time of the initial appearance assuming the surety is present.

Posting a Secured Property Bond is a complex procedure. It’s involves several steps. It requires a current appraisal, an updated lot book report from a title company and the filing of notarized documents with the county recorder’s office. Each step must be done correctly and in a certain order.

There are two different ways you will be brought into court in a Federal Case. You will either receive a summons requiring you to appear in court on a certain date or you will be arrested. The first is obviously preferable.

If you and your criminal defense attorney have worked out a pre-indictment resolution of your case, your attorney should have pre-arranged a bond amount with the U.S. Attorney’s office and will have made arrangements for you to appear in court on a given date. If the U.S. Attorney’s office agrees to a specific amount, you can have the appraisal and necessary documents ready to go so that the bond can be posted within a couple of days. Most judges will allow a certain amount of time to post the bond. You may remain free on bond while the process is being completed.

If you are arrested and brought into court in a federal case, bail will be determined at a detention hearing before a federal magistrate judge.   The magistrate judge will consider two factors, whether you are a flight risk and whether or not you pose a danger to the community. The issue of flight is decided based on a number of factors including how long you have lived in the community in which you are charged, family ties to the community, employment, education, prior criminal history, whether or not you travel frequently, whether or not you possess a passport, whether or not you have any failures to appear or warrants or whether you have ever used any aliases.

The element of danger to the community depends primarily upon the charges and any prior criminal conduct.   If someone is determined to be a danger, bond will not be granted.

The court will also want to know whether you have any financial resources. If you or a family member or friend are willing to post equity that may be available in real property, the court will consider that.

The court will often release a defendant forthwith with the signature of a responsible third person pending the completion of the process of posting the property bond.

The court will set certain conditions of bond. These conditions almost always include reporting to pretrial services which is similar to being on probation pending trial. You will have to remain within the district in which you are charged unless you have permission to travel from the court. You must stay away from any airport, train station, bus station or seaport; and you must surrender your passport to the court. Drug testing is required in any case where there is information or allegations of drug use. A violation of any of the terms or conditions of your bond can cause the court to revoke the bond and take you into custody.

Entering a Guilty Plea

If you have entered into a pre-indictment deal with the government, your next court date will the change of plea hearing. A change of plea hearing in federal court is much different than in state court.   The plea agreement itself is generally a 16-24 page document that is prepared specifically for your case. It sets forth the facts of the case, the maximum and minimum sentence you may be facing, the sentencing factors including the applicable sentencing guidelines, a waiver of your constitutional rights, the elements of the offense and most of the time a waiver or your appellate rights among other things. There is also a provision of the agreement that says that the court is not a party to the agreement and that no one can make any promises to you about what your actual sentence will be. Even your lawyer.

Your attorney must go through the document with you in great detail before you sign the agreement. Once the agreement is signed, it is filed with the court. The court will have read the agreement before the change of plea hearing.

The hearing itself can take from 20 minutes to an hour depending on the judge. (I had one change of plea hearing that lasted an hour and a half!) The judge will go through every section of the plea agreement with you to make sure that you understand everything.

The Probation Interview and Pre-Sentence Report

The court will set the sentencing hearing, in most cases, 10 weeks after the change of plea hearing. During that 10 week period, the probation department prepares a Pre-Sentence Report.   Probation conducts an interview which is referred to as the PSI.   The interview takes place in the U.S. Probation office which is in the courthouse. You will be required to answer questions about your family, education, employment, health etc. This information, along with information about the offense, any criminal history you may have and the sentencing guidelines, all goes into the report. The probation office will then make a recommendation for what sentence the court should impose and provide that to the court.

As an experienced criminal defense attorney I always prepare my clients for the PSI by gathering every bit of information about my client. I want to know about your upbringing, if there was any violence or substance abuse in the home. I want to know about your family, education and employment, your health, your prior convictions if any, your goals for the future. I will also have you bring all of that information, including character letters to the pre-sentence interview.

Sentencing

Prior to sentencing your lawyer and the Assistant U.S. Attorney file what is called a Sentencing Position Paper. This Position sets out all of the arguments both sides are going to make at sentencing. The Position Paper is usually filed 2 weeks before sentencing.

At the time of sentencing, the Judge will have read the Pre-sentence report, your sentencing position paper along with any mitigating information you may provide including character letters, diplomas and medical reports. The judge will also have read the government’s sentencing position paper. The Judge will probably have a good idea of the sentence they are going to impose when they take the bench for your sentencing hearing but there is still a chance to change the judge’s mind.

Both sides argue their side and reply to arguments by the other side. The Judge might even ask questions about certain issues.

Then it is your turn. Each defendant has a right to “Allocution” which is the right to be speak to the Judge before he or she imposes the sentence. This is the time for someone to express remorse for their actions and convince the court that they will not re-offend.

The Judge then imposes the sentence.

When do I go to Prison, If I’m going to Prison?

Most Federal Judges will allow a defendant to turn themselves in to the prison where they are designated 6-10 weeks after sentencing. This gives the bureau of prisons time to determine where you will serve your sentence. It also impacts where the bureau of prisons will place you. Your pre-trial services officer will give you the designation information once it is received. (The bureau of prisons website sets out in detail, the procedure they use to make this determination.)