ARREST AND INITIAL APPEARANCE
A person comes into the federal system in one of two ways: after the issuance of a complaint or an indictment. Under most circumstances a warrant for the person’s arrest follows the filing of these documents. After the person is arrested, the government must bring him before a magistrate judge for an initial appearance. This is the client’s first court appearance. At this appearance, the client will also be formally notified of the charges brought against him.
The purpose of a detention hearing is to determine whether a client should be released while his case is pending. Two of the most common concerns for the court is determining whether a client is a flight risk or danger to the community. At this stage, it is crucial to show that a client has long standing ties to the community, a home, steady employment, and sometimes, assets that he can surrender in the event he misses court. This hearing usually takes place no later than five days following a client’s arrest. Preparation for this hearing is essential, because this hearing determines whether or not our client will be released from custody.
Not only do we do research on our client, but we also reach out to our client’s family and friends to determine who is willing to testify on his behalf. We also determine where our client will live while his case is pending, if he is willing to abide by a curfew, and any other conditions that the court may impose. These details are needed in order to support our argument that our client should be released. Success at the detention hearing is the difference between our client working with us on his case from jail, or in our offices.
DISCOVERY AND PRE-TRIAL MOTIONS STAGE
This is one of the most critical, and tedious steps in a federal criminal case. In the discovery stage of a case, we request and review the government's evidence. We often retain experts and investigators in order to analyze, and seek out additional evidence . Often times, there is lots of valuable information that our team is legally entitled to have, that the government doesn’t want to turn over. Due to the government’s failure to turn over all of the legally required evidence, we then must ask the court to intervene.
One pre-trial motion, that is most commonly filed is a Motion to Suppress. A Motion to Suppress is used when our office wants to prevent the government from using certain evidence at trial. The basis for each Motion to Suppress is different. However, Motions to Suppress are used in a variety of cases. In drug conspiracy cases Motions to Suppress can be used to exclude drugs, wiretap evidence, statements, and other evidence that may have been improperly obtained by the government.
PLEA NEGOTIATIONS AND GUIDELINES COUNSELING
After reviewing the government's evidence and discussing possible defenses, a client may decide that it is in his best interest to enter into a plea agreement. Individuals may decide to plea for a variety of reasons. In the federal system, a person who pleads guilty may expect a much shorter sentence than a person who proceeds to trial and loses. Pleading guilty can also, sometimes results in lesser charges.
In the federal system, we rely on the United States Sentencing Guidelines to assess the value of any plea deals and to predict the sentencing outcomes after admitting guilt or being found guilty at trial. Careful analysis of the facts in the case and the United States Sentencing Guidelines, however, alert us to possible sentencing enhancements that a client may face if he pleads, or is found guilty of a particular charge. No one can guarantee any particular result—in the federal system the ultimate sentencing decision belongs to the judge.
CHANGE OF PLEA HEARING
A person who decides to plead guilty must appear in court for a change of plea hearing. At this hearing, a judge reviews the statues of the crime and penalty ranges that a person may face upon a finding of guilty. The judge also assures that there is a factual basis for the plea of guilty. Finally, the judge reviews any plea agreements between the defendant and the government at that time. After conducting this hearing, the client is interviewed by a United State Probation Office and a presentence report is prepared.
Jury selection, also known as voir dire, is the first time the attorneys are allowed to speak directly to, and ask questions of the jury. Jury selection is an artform, and only the most skilled attorneys are successful at it. We are those attorneys. Jury selection is important because it allows us to go into the mind of a juror to determine what his or her biases, and beliefs are. Not every juror is right for each case, and it is our job to make sure that the jurors who aren’t right for your case, don’t make it into the jury box.
A client who opts not to plead guilty is entitled to a trial. At trial, the government must present evidence that supports a guilty verdict. The jury can only vote guilty if it believes that the government has proved each element of the offense(s), beyond a reasonable doubt. This is the highest burden of proof by law, and the government must me it. Federal trials can last anywhere from 2 days to 6 months or more.
Trial begins with us and the government giving opening statements. The government is then allowed to present its case. During trial, we are able to confront the government’s witnesses, through examination, and attack the government’s evidence. We are also allowed to present our own witnesses and evidence. The case then moves to closing arguments. Closing arguments are the last chance for the government and ourselves to argue to the jury why we should prevail. After hearing all of the evidence, and hearing the arguments of the attorneys, a jury may come to one of three outcomes: not guilty, guilty or no outcome (which is often called a hung jury).
If your case results in a not guilty verdict, the case is over with. If your case results in a guilty verdict, the next step is preparation of the presentence report. If your case results in a hung jury, there are several different possibilities. The first thing that must be done after a hung jury, is for the government to decide whether or not they want to retry the case.
In the time between the change of plea hearing or guilty verdict and sentencing, a client will have an interview with a United States Probation Officer. That officer works for the court. It is the US Probation officer's job to create a report for the sentencing judge so that he can make a proper determination of the United States Sentencing Guidelines that apply in the client’s case. These Guidelines provide a range within which the judge can sentence an individual that is presumptively reasonable. We assist our clients in preparing for their meeting with US Probation.
Once we receive and review the US Probation officer's presentence report with our client, we may contest the conclusions from certain facts that lead to a specific Guidelines range. Long before then, however, we prepare to counter the recommendation of the presentence report by obtaining the support of friends, family members, court records, school records, awards, and other materials that tend to show our clients in the most positive light. This dual process allows us to counter the Guidelines recommendation through objections to the presentence report and through a memorandum in support of a departure or variance from the Guidelines.
After the court has received and reviewed objections to the presentence report and sentencing memorandums it will hold a sentencing hearing. At this hearing we may present additional evidence to substantiate our objections to the presentence report or to rebut the government’s objections. Family members and people supporting the client being sentenced may also be heard. Finally, any victims of the alleged offense must be heard at the sentencing hearing. The judge then pronounces a sentence in open court.
A client who we obtained release at their detention hearing, and remained on bond following the change of plea hearing may need to surrender at the sentencing hearing. In some cases, the judge may allow our client to self-report to a prison. This option varies on a case-by-case basis. However, a client that is allowed to voluntarily surrender receives a 3 point reduction, in his assessment with the Bureau of Prisons.
POST-CONVICTION AND APPEALS
Being found guilty at trial is not the end of a case. The filing of a Judgment of Acquittal, often called a Rule 29 Motion, and a Motion for New Trial, also called a Rule 33 Motion, are crucial after a guilty verdict.
The federal system recognizes that sometimes the jury gets things wrong, and that’s where a Rule 29 Motion comes in. While each case is different, there are several different avenues to arguing a Rule 29 Motion. However, the basis of a Rule 29 Motion is that the jury got the verdict wrong, so arguments are limited.
With each Rule 29 Motion, a Rule 33 Motion, is commonly filed. Rule 29 Motions are good, but Rule 33 Motions, are better. Rule 33 Motions allow the court to consider a laundry list of factors that are not allowed in a Rule 29 Motion, including things that happened pre and post-trial. The improper admission of evidence, and the improper denial of a continuance are just a couple of things that can be presented in a Rule 33 Motion.
Following the judgment at a sentencing hearing, or a ruling on a Rule 29 or Rule 33 Motion, a clients has 14 days to file a notice of appeal. If a client has entered into a plea agreement with the government, he normally waives the right to an appeal except for very narrow circumstances. Clients who have not waived their right to appeal may proceed with their full rights of appeal.
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