The cold hard facts are this: If you are charged with a crime by the U.S. Attorney’s Office the chances are good that you will face some time in prison., the length of which is depended on the charges brought. Whether you are “guilty as charged” or in fact innocent (approximately 3-5% of those incarcerated are in fact innocent) you will need the assistance of a criminal attorney.
Many people, especially “White-collar” offenders usually have access to professional acquaintances that may or may not have included lawyers however the perhaps “suddenness” of a search warrant being issued or receiving a letter informing them that they are a target leaves them bewildered, confused and scared. Additionally, many of the “friends” of an accused are nowhere to be found any longer negating the support system that was once taken for granted. If you find yourself under the gaze of the US Justice Department and are now searching for a criminal attorney, here are some suggestions to consider when doing so:
Call the Federal Public Defender’s Office. If your assets have been frozen by the government or you are in fact unable to afford an attorney, the U.S. District Court can appoint one for you. The Federal Public Defender’s Office may be appointed to represent you.
If you decide to hire a private attorney to represent you, you may want to consider calling the Federal Public Defender’s Office to ask for referrals to an attorney who once worked there but has now left to enter into private practice. Another option, which actually makes more sense is to find an attorney who worked at the local U.S. Attorney’s office. This can be discovered by calling various local law firms and asking the question. An attorney who worked at the Federal Public Defender’s Office will be familiar with any unique tactics employed by the U.S.Attorney’s office. The lawyer who once worked at the U.S. Attorney’s office will not only be familiar with the methods of the DOJ but the prosecutor at the AUSA (Assistant United States Attorney-a reference applied to the U.S. Attorney’s Office) may be more cordial to a former coworker. While this does NOT guarantee special treatment, it does not hurt that a working relationship once existed between the two.
Once you narrow down an attorney, an interview by you is in order. You will want to know how many cases they have handled similar to yours. For example, do they specialize in White-Collar defense? If so, what type of white-collar crimes-Corporate fraud, Medical, Tax issues, etc. It is always advisable to choose an attorney with a considerable history of defending your type of situation. It is appropriate to ask what their results have been. Questions like these not only can - but will - allow you to choose the best attorney suited to your situation. Make this call brief - no more than 10 minutes. Respect their time. If you are comfortable with what you hear ask to make an appointment.
When making an appointment, ask if the first consultation is at no charge. Do NOT assume anything! You do not want any surprises concerning your case from this point forward, and this question will prevent any misunderstandings.
At the consultation, pay attention to the attorney’s attitude. Their demeanor. Their personality.
1. Are they personable?
2. Are they rushing you?
3. Are they condescending?
4. Are they rushing you to hire them?
5. What is their fee structure and billing schedule?
6. What is their retainer?
7. Do you feel comfortable with them?
Feeling comfortable with your attorney cannot be overstated. Let’s make one thing perfectly clear-your life is in their hands! Literally! If you have a gut feeling-positive or negative- about a potential defense counsel-go with your gut! I simply cannot stress this enough.
Now if your circumstances demand that you receive a court-appointed attorney you will probably not be in a position to “dictate” your desires to them. Quite frankly, a group like the Federal Public Defender’s Office is burdened with heavy case-loads. This doesn’t mean that a privately paid attorney is not also, but you are paying for their service. You do have some control. This does not give you the right to be disrespectful to your private attorney in any way nor can you demand things-but this also means you are entitled to their time and expertise without attitude.
Although you would think that this next point would fall under the category of “common sense” when it comes to defending yourself-make no assumptions! The point is this: your first meeting with your attorney should be the opportunity to fully disclose the circumstances, the minutiae, the story really, of your case. Before your appointment write down the highlights of the pending accusations. Constructing a timeline of events concerning these accusations will be extremely helpful. Optimizing your time with your attorney at this first meeting will be appreciated by them but more importantly, putting things in writing will prevent memory loss and will also prevent you from “rambling” needlessly as well. As you are going through your case you should expect your attorney to be taking notes.
In closing, please keep the following in mind: Ignorance is NOT bliss! Do NOT assume that everything is going to be okay just because you haven’t heard anything for a while. The AUSA take their time constructing a white-collar case and it is not unheard of to have years pass as they do so. Insist on being informed by your attorney-paid or court-appointed. Doing so will minimize any surprises.
As I said, white-collar cases usually involve time. As disturbing, as heartbreaking, as difficult all of this has been, please accept this from someone who went through what you are now going through-You WILL get through this…
FEDERAL SENTENCING GUIDELINES
You are familiar with the term “don’t make a federal case out of this”. Old sayings do not become old sayings because they don’t hold meaning. The reason that people use this phrase is due to the extraordinarily harsh sentences meted out by the Feds. There was a time when a State Court threw out higher sentences however in 1987 the US Government began using what is known as sentencing guidelines. Found in 18 U.S. Code section 3553, Federal Sentencing Guidelines are meant to “be fair” and to be consistent across the country. However, what has resulted has been anything but. These guidelines have caused a draconian sentencing scheme that results in exceptionally long prison sentences. They are, in essence, the reason for the Mass Incarceration in America today. Although allowing judges the ability to deviate from the guidelines, the court must be able to substantiate the specific reason for making such a departure.
Consisting of six criminal history levels and 43 offense levels the guidelines can result in mind-boggling ranges of incarceration. To have competent legal guidance on your side is a must and I can say from conversations with many guys on the inside, the better the representation the lower the sentence. It did not “seem” that way—it was that way!
Today, there are approximately 3,000 crimes listed in the U.S. Code. According to Pew Research (the latest calendar year 2018 in which statistics are available as of this writing), 2% of the 80,000(1,600) defendants facing Federal charges went to trial. Of those who chose to go to trial fewer than 1% (16) of them resulted in acquittal! 16 acquittals out of 80,000! Going to trial and losing usually results in a harsher sentence as well. The vast majority of those charged with a federal crime decide to plea.
Plea Agreements
Those who enter into a Plea Agreement with the Government usually plea to either the charged offense or a lesser offense which results in a dismissal of other charges and a promise not to charge for other offenses. There are considerations that a Plea Agreement includes.
1. Will the accused cooperate in the investigation and/or prosecution of others?
2. The nature of the crime charged. How serious that charge is.
3. The defendant’s past (if any) criminal history
4. Assumption of responsibility of their criminal conduct
5. How quickly can the case be resolved?
6. What effect does going to trial would have on witnesses
7. The expense the Government will incur to try the case in open court
Downward Departure
The prosecution can argue that the court increases the defendant's sentence, but it can also argue for a decrease in the sentence as well. There are factors that are involved in making this downward departure possible. These are what are known as Mitigating Circumstances and the court can also deviate from the Sentencing Guidelines. Accepting responsibility, cooperating with the prosecution, criminal history, and the nature of the crime will all be considered in making a determination for a Downward Departure. Having exceptional legal representation cannot be overstated in these negotiations with the Government.
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