Law Review By John Teakell

Federal Criminal Defense Law Review CLE December 8, 2011 Dallas, TX ByJohn Teakell, Law Office of John R. Teakell, Dallas, Texas

Federal CasesMore ComplexLarger, more significantLarger Dollar AmountsTraditionally, larger white-collar and large drug trafficking+ Public Corruption, Immigration, + Variety

U. S. Attorney’s Office Field Office of DOJAutonomy in Prosecution, limited exceptionsU.S. Attorney = Presidentially appointedAssistant U.S. Attorneys known as “AUSA”sAgency asks U.S. Attorney’s Office to concur with investigation before time and effort spentInvolved in early stages of investigation, unlike State cases

AGENCIESFBIDEAU.S.P.I.S.IRS - CIDOIG’S

Conspiracy/Scheme Commonly Used ChargesConspiracy Two or more persons Agree to do something illegal One overt act attempted U.S. v. Coleman, 609 F.3d 699 (5th Cir. 2011)(Gov’t. must show 1) agreement between two (2) or moreto pursue an unlawful objective, 2) defendant’s knowledge ofobjectiveand voluntary agreement to join, and 3) an overt act by one or moremembers of the conspiracy in furtherance of conspiracy.Scheme Similar, but can be only one person e.g., bank fraud scheme, mail fraud scheme

Conspiracy / SchemeDifference Conspiracy by definition is two (2) or more persons Scheme can be one person Similarity  Co-Schemers are/can be liable for the acts of participants, as in a conspiracy  U.S. v. Green, 592 F.3d 1057 (9th Cir. 2010)

CONSPIRATOR LIABILITY “Pinkerton” LiabilityGenerally, co-conspirators liable for acts of other co-conspiratorsU.S. v. Jimenez, 509 F.3d 682 (5th Cir. 2007) (Pursuant to the Supreme Court’s decision in Pinkerton, a conspirator can be found guilty of a substantive offense committed by a co-conspirator and in furtherance of the conspiracy, so long as the co-conspirator’s acts are reasonably foreseeable.)

InvestigationsLocal Authorities/Local ArrestsTask ForcesInformants/CooperatorsWiretapsAdministrative/Civil Cases

Charging ProcessComplaintTarget LettersGrand Jury Indictment

JurisdictionWhere crime was committedWhere criminal activity occurs/finishes

Indictment and Grand JuryGrand Jury Secret proceeding Crime to communicate w/ GJ to influence Often seen as a “rubber stamp” for prosecutors GJ may see records and hear testimony prior toa proposed Indictment to “return” Burden of proof = probable cause to believe that a crime was committed

Indictment and Grand JuryFederal grand jury composed of 16 – 23 membersAt least 12 members to concur that probable cause was established to return an IndictmentNot concerned with whether proposed defendants are guilty or not guiltyGoverned by Rule 6, Federal Rules of Criminal Procedure

Indictment and Grand Jury INDICTMENT  Charging document which makes allegations against defendants  Contains a statement of facts constituting an offense  Must list the citation of the relevant statute  Governed by Rule 7, Federal Rules of Criminal Procedure

Arrest and DetentionArrest Pursuant to a warrant issued after the Indictment Initial Appearance before a U.S. Magistrate Judge  Apprise Defendant of charges against him  Learn from U.S. whether it seeks to detain Defendant without a bond  Determine if Defendant has counsel or will hire counsel

Arrest and DetentionDetention Court can detain a Defendant without bond if he is deemed a: 1) Flight risk, or 2) Danger to the community Defendant is entitled to hearing – 3-5 days

Arrest and DetentionRebuttable Presumption In drug cases, if a potential sentence is ten (10) years or more, then a rebuttable presumption exists that the Defendant should be detained 18 U.S.C. §3142  Burden to show Defendant should NOT be detained shifts to the Defendant  Common for drug case defendants to be detained Personal Recognizance Bond – promise to appear/no $  Often given to non-violent, first-time offenders

Pre-IndictmentClient Status Target Subject Witness

Show-and-Tell From U.S. AttorneyGetting discovery or a “Road Map”understanding of the evidenceagainst Defendant to make thedecision Pre-Indictment

Determine If Good Case Against Client v. Trial CaseIf so: Negotiate Re: U.S.S.G. Negotiate Charge Cooperation Historical/Debrief Active Clock Not Running Plea of Guilty at Some Point

If Questionable Case for GovernmentConsider: Presenting information to AUSA in attempt to “kill” the investigation Affidavits, records, examinations At least minimize by: Reducing role Reducing quantity/dollar amount Reducing charge

Pleas of GuiltyHearing  Plea of guilty has to be voluntary  There has to be a factual basisPre-Sentence ReportMay be delayed if cooperatingRule 11, Federal Rules of Criminal Procedure require record at plea hearing

Pleas of GuiltyRule 11 Requires Advising False statements used against defendant in perjury case Right to plead not guilty Right to jury trial Right to counsel Right to a trial, to confront evidence Waiver of these rights upon plea of guilty

Pleas of GuiltyRule 11 Requires Advising (Cont’d.) Nature of each charge Application of USSG Maximum penalties Any waiver of appeal Any mandatory minimum penalty Any forfeiture Possible restitution Special assessment

Plea Agreement Plea to Which Count Waiver of Rights -- usually waiver of appeal Some Districts do stipulated facts within the Plea Agreement, as opposed to separate document Do you need a Plea Agreement? Many today are one-sided in favor of government Do Agreement if amending charge, stipulating to non- enhancements, or agreeing to no further prosecution

CooperationPre-Indictment:  If determine a good government case  Determine what USAO needs or believes your client can do  Not under time concerns that may be present for Indicted CasePost-Indictment:  If determine a good government case

Cooperation (Continued)Proffer:If 1. Solid case against client or 2. Client is “on the bubble”Only downsides 1. Locked into version of facts 2. Government can independently investigate areas of information if no agreement reached

Cooperation (Continued)U.S. Sentencing Guidelines §1B.1Immunity Agreement  Transactional Immunity – regarding a/the transaction  Limited Use Immunity – regarding testimony/statements  U.S. v. Ramos, 537 F.3d 439, 45` (5th Cir. 2008) (Transactional immunity prevents prosecution for crimes; use immunity prevents the use of testimony in prosecution for crimes.)

Downward Departure“Substantial Assistance” Ch. 5, Part K, USSG (“5K.1”)  Motion filed by U.S. to depart downwardly from U.S.S.G. point level  Court’s decision regarding sentence reduction  One-third off standard; sometimes moreCourt could vary if no Downward Departure  Reason specified in the record

Sentence ReductionRule 35, F.R.C.P.After sentencingSame as a Downward Departure Motion, but this is after Sentencing

Trial/LitigationMotionsInvestigationLegal ArgumentsWitness / Exhibit Lists FiledVoir Dire Conducted by Judge

TrialSpeedy Trial ActRequires trial within 70 days, or case reversed or sentence vacated or dismissed -- U.S. v. Burrell, 634 F.3d 284 (5th Cir. 2011)Tolling of Time  Motions, unavailability of defendant, necessary continuances, last co-defendant in, etc.

Sentencing CalculationsU.S. Sentencing Guidelines = AdvisoryCalculate the Offense Level, then Sent. TableU.S.S.G., first see Base Level  Then add Quantity or $ Amount Points  Plus Other Enhancements, e.g., Abuse Trust Work on variance if no departure Defendant’s Sentencing Memo

U.S.S.G. Calculations Example of Fraud Case Frauds, Embezzlements, etc. – 2B1.1 U.S.S.G.  Dollar Loss = Over $1MM but less than $2.5MM  More than 50 victims  Abuse of Position of Trust or Skill Base Level = 7; + 16 for $ Loss; + 4 for Victims; + 2 Abuse of Position of Trust = 29, which is 87-108 months Category I Minus 3 Accept. Respons. = 26 in Cat.I = 63-78 mos. Reduction further?

U.S.S.G. Calculations Example of Drug Case Trafficking and Possession 2D1.1 of U.S.S.G.  2 kilograms of “crack” (cocaine base)  Organizer/Leader  Weapon possessed Drug Quantity Table Level – 36: + 2 Weapon; + 3 Leader/Manger from 3B1.1 U.S.S.G. = 41= 324-405 mos. Cat. I Minus 3 Acceptance Resp. and Minus 2 for “Safety Valve” (if not deemed an Org/Leader/Mgr) = 36 = 188-235 mos Cat. I Reduction further? If convicted at trial and testify, no accpt + could add 2 points for Obstruction of Justice 3C1.1 U.S.S.G.

Relevant ConductIn U.S. Sentencing Guidelines “Relevant Conduct” can increase Guidelines calculations on dollar amounts and drug quantities Relevant Conduct is similar conduct that is not charged in the Indictment that comes from credible sources “Credible” will be decided by the court If Defendant proffers to government and tells of relevant conduct prior to government’s knowledge, it will not be included in calculations (1B.1 of U.S.S.G.)

Death Penalty Cases Have to be Eligible as Death Penalty Case Request Permission from Attorney General  Formal process  Make Presentation to A.G.’s Panel after Written Appl.  Defense Counsel has Opportunity to Make Presentation Eligible if: Heinous murder; Murder of Gov’t. Witness; Murder During Trafficking; Mass Deaths; National Security Secrets Variety of Factors A.G. Considers

Appeal Overview Notice of Intent to Appeal – filed within ten (10) days From issuance of Judgment Standard of Review  If objections at trial, then abuse of discretion and harmless error  If no objection at trial, then generally the standard is plain error Demonstrate reversible plain error by  1) Showing error; 2) it is plain; and 3) affected substantial rights Appellate Ct. generally does not reverse unless plain error seriously affects the fairness, integrity or reputation of proceeding. U.S. v. Garcia, 522 F.3d 597, 599-600 (5th Cir. 2008)

Misc.Pre-Trial DiversionMisdemeanors“11(c)(1)(c)” plea“Business decision”Home detention / Halfway houseParallel Investigations“Reasonably foreseeable” drug quantities

Law Review By John Teakell

by Casey Watkins on Dec 19, 2011

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