Federal Criminal Defense is the defense of persons charged with offenses in Federal Courts. The criminal cases handled by a federal court include those alleging violations of federal law, or violations of law occurring on federal property. While there are some similarities between state and federal courts, in federal court the criminal case process is quite different than state court.
The similarities between federal and state court include the Constitutional protections provided to criminal defendants. A defendant in both federal and state courts in Texas has the rights set forth in the United States Constitution as well as under federal law. For example, a defendant has the right to remain silent, that is to say, to not make a statement. This is a critically important right. A person accused of a crime should never ever make a statement without consulting with an attorney first. Also a defendant should never ever talk about the facts of the case with visitors at the jail or while on a phone call from the jail. The El Paso County Jail and most other jails which hold federal defendants record all inmate conversations with visitors as well as all telephone conversations from or to defendants.
An accused person in a federal case also has the right to testify at trial, but if a defendant chooses to not testify, the judge or the jury cannot hold the defendant’s refusal to testify against them.
Accused persons also have the right to hire the criminal defense attorney of their choice. It is however critically important in federal criminal cases to obtain competent legal counsel as quickly as possible. Often within a week or two of being arrested a federal criminal defendant will have already been through both a preliminary hearing and a bond hearing. All too often lawyers will waive both hearings. Waiving the hearings blows the one chance a defendant has to put the arresting agent on the stand and question him or her about the facts at the preliminary hearing or to get the client out of jail at the bond hearing. On occasion such hearings should be waived but the accused should always understand why before a hearing is waived.
In a federal criminal case, the burden of proving guilt is on the government. A good defense attorney will hold the government to its burden of proving its case against the defendant to the highest legal standard of beyond a reasonable doubt. At trial, the defendant’s attorney will use subpoenas to force witnesses come to appear in court to testify on the defendant’s behalf. Defense counsel will also cross examine the government’s witnesses on the defendant’s behalf.
There are important differences between federal and state criminal cases. Where a state case may take years to go to trial, a federal criminal case may go to a jury in less than six months.
Also, cases in federal court often involve the application of Federal Sentencing Guidelines and of Congressionally imposed mandatory minimum sentences. While in state court juries can be responsible for determining sentences, in federal court judges are responsible for imposing sentences. While the Federal Sentencing Guidelines are no longer mandatory, they are still used in the sentencing process and can result in harsh and extremely severe punishments. Even where judges exercise their discretion to depart from the Federal Sentencing Guidelines, they are still required to stay within the mandatory minimum and maximum terms imposed by federal statutes unless they are provided a legal means by which to vary from the mandatory terms. For example, a first time drug offender may qualify for a reduction in sentence by making a “safety valve” statement which allows a judge to deviate below the mandatory minimum sentence in handing out punishment.
In drug cases, the maximum and minimum terms of imprisonment are determined based upon the type and quantity of the controlled substance involved. Other factors which can affect the length of the sentence of imprisonment imposed include whether or not a weapon was involved in the crime, whether or not another person was injured, and the prior criminal history of the accused.
However, before a federal judge determines a sentence for a defendant, that person must meet with a federal probation officer who prepares a presentence report for the purposes of calculating the guideline sentence applicable to a particular case. Because the federal probation officer can have a great deal of influence on a person’s sentence, the accused person’s attorney should be present at the meeting. In situations in which the sentencing range is from 0 to 6 months, a defendant can sometimes be sentenced to probation with no time in custody, and if the sentencing range is from 6 to 12 months, the court can sometimes sentence a defendant to probation provided that it is combined with a term in custody such as through home confinement, community confinement, or intermittent incarceration. A federal sentence may include a set term of “supervised release” after the period of incarceration is completed. Supervised release may be extended for violations of the terms of supervised release.
While there is no parole in the federal system, there is the possibility of early release if a defendant is awarded good time credit. Federal statutes provide that a federal inmate can receive 54 days of good time credit a year. In reality, though, the way that the Bureau of Prisons calculates good time credit means that an eligible federal inmate who is in a Federal Bureau of Prisons facility will receive 47 days of good time credit a year. In general, a federal criminal defendant serves at least 85% of his or her sentence.
Because of the complexities involved in the federal process, an accused person needs an attorney as soon as he or she discovers that they are under investigation, or as soon as possible after the arrest. An attorney is necessary to ensure that one’s Constitutional rights are protected and that one’s case is handled as aggressively as possible during the criminal case process in federal court. Moreover, since sentencing is almost always an issue, an attorney must spend the time to calculate how the Federal Sentencing Guidelines apply to a particular case and what variances or downward departures from the sentence are possible in order to explain them to the client. Only when a defendant knows how the facts, law and any defenses apply in his or her particular case and what a plea deal sentence will look like compared to a possible outcomes at trial, can he or she make an informed decision as to whether to go to trial. At Hernandez & Hernandez we are dedicated to providing accused persons the aggressive and knowledgeable representation needed in federal criminal cases. Examples of federal criminal charges in which we will provide dedicated representation include the following:
- Drug Crimes charged under the Drug Abuse Prevention and Control Act of 1970, also known as the Controlled Substances Act Controlled Substances Act. These can include:
- Drug Trafficking, which is manufacturing, distributing or possessing with intent to distribute illicit drugs.
- Manufacturing, which is operating places for the purposes of manufacturing, distributing or using illicit drugs.
- Continuing Criminal Enterprise crimes which consist of a person trafficking in illicit drugs in concert with five or more other persons.
- Conspiracy, which involves attempts and the promoting and facilitating of manufacture, distribution or the importation of illicit drugs.
- Possession, which involves possessing controlled substances without a valid prescription from a licensed medical practitioner.
- Protected Location Offenses, which involve distributing illicit drugs to persons under age 21, within a school or playground zone, and employing persons under age 18 in drug operations.
- RICO Act Crimes – Offenses under the Racketeer Influenced and Corrupt Organizations Act. The Racketeer Influenced and Corrupt Organizations Act is a federal law that provides for extended criminal penalties as well as a civil cause of action for acts performed as part of an ongoing criminal organization
- Fraud Crimes including Securities, Mortgage, Wire, Insurance, Healthcare, Mail and Bank Fraud
- Public Corruption Crimes
- Money Laundering Crimes
- Weapons Crimes
- Environmental Crimes
- Immigration Offenses Such as Illegal Entry and Human Trafficking
- Computer and Internet Crimes
- Pornography and Obscenity Crimes
- Crimes Committed on Federal Property
- Interstate Crimes
- Crimes of Violence and Death
If you are in need of an attorney for a federal criminal matter, contact our office today for your free consultation.