Joseph Abrams Answers FAQ About Federal Criminal Law
If law enforcement authorities conduct a search of my property without first obtaining a warrant will the seized evidence be suppressed at a subsequent trial?
Sometimes, but not always. While the Fourth Amendment generally requires that law enforcement obtain a valid warrant prior to searching a person’s property, there are many legally-recognized exceptions such as consent or exigent circumstances. Further, even if an exception does not apply, the search may be subject to an exclusionary rule exception. That is, even though the search was technically illegal, the evidence may still come in based on equitable considerations such as inevitable discovery or good-faith intention. In short, search and seizure law is highly complex with many potential pitfalls for the unwary or inexperienced. If your property is ever subject to a warrantless search by law enforcement you should contact an experienced criminal defense attorney who is familiar with search and seizure law.
If I’m ordered to pay restitution in a federal criminal case, how long may the government enforce collection and may my home and other assets be seized to pay restitution ?
In general, the government may enforce a restitution judgment for 20 years from the filing date or 20 years from the release date of any period of imprisonment. The government also has broad authority to file restitution liens against all property owned by the defendant. However, so long as the defendant makes restitution payments as agreed, it’s highly unlikely that the government would move to enforce property liens in an effort to seize assets.
Is it possible to be granted bail while awaiting an extradition hearing?
It’s possible, but not very likely in most cases as there is a strong legal presumption against bail in extradition cases. Similar to criminal cases, to be granted bail in an extradition case the defendant must establish that they are neither a flight risk nor a danger to the community. However, in extradition cases, the defendant must additionally establish that there are special circumstances in the case that support their release on bail. Taken together, the requirements for bail in an extradition case presents a significant challenge and requires a federal criminal attorney with experience and knowledge of the extradition laws.
Can I be charged, convicted, and sentenced in both federal and state court for the same crime?
Yes. Many state crimes also violate federal law (i.e., drug trafficking, fraud, gun offenses), making you susceptible to being charged in federal court even if you already sustained a conviction in state court. While it is not routine practice, it is more likely to occur in large-scale offenses and high profile cases. This practice does not violate the Fifth Amendment prohibition against double jeopardy as the state and federal government are considered two separate sovereigns. If you or a loved one are charged with an offense that violates both state and federal law, it’s important that you consult with an experienced federal criminal defense attorney to ensure that any federal prosecution is conducted fairly and consistent with the law.
What is a “career offender” in a federal criminal case?
A “career offender” is a special designation under the federal sentencing guidelines to enhance penalties for certain repeat offenders. Simply put, to qualify as a career offender, the defendant must be convicted of a felony drug offense or crime of violence, and have at least two prior convictions for a felony drug offense or crime of violence. However, there are some exceptions to the definition as well as ways to mitigate a career offender designation. If you or a loved one are at risk of being designated a career offender, it’s important that you consult with an experienced federal criminal defense attorney to ensure that your rights are protected and you receive the best possible outcome in your case.
If I’m subpoenaed to testify before a federal grand jury, may I have an attorney with me during my testimony?
No. Only the government attorney, witnesses, and jurors are allowed in the grand jury room. However, if your are subpoenaed to testify, you should retain an experienced federal criminal defense attorney to guide you through the process and consult with prior to your testimony. Also, during your testimony, you may request time to consult with your attorney outside of the grand jury room.
If I’m sent to federal prison can I be granted compassionate release?
Federal inmates can be granted compassionate release in some cases, although they are relatively rare. Before compassionate release can be granted, the court must first determine that the defendant is not a danger to the community. The defendant must then establish “extraordinary and compelling” reasons for granting compassionate release. In general, these must relate to the defendant’s medical condition, age, or family circumstances. Some of the more common reasons for compassionate release include that the inmate suffers from a terminal illness, the inmate is elderly and in poor health and has served most of their sentence, or the caregiver to the inmate’s minor children has died. There are certain requirements and limitations in the law that govern compassionate release. If you or a love one believe your case deserves compassionate release, you should consult with an experienced federal criminal defense attorney to discuss your options.
If I’m sentenced to federal prison, where will I serve my sentence?
The Federal Bureau of Prisons has sole discretion to designate inmates to any institution in the country. The ultimate designation will depend on a number of factors, including security classification, medical needs, judicial recommendations, and proximity to the inmate’s residence. As such, if there are serious security concerns or medical treatment requirements, it’s possible that you will serve your sentence in another state or even a different part of the country from where you live. However, absent any extraordinary circumstances, you are likely to be designated to an institution within 500 miles of your primary residence to facilitate visitation from family and friends.
If I’m charged in federal court, should I waive my right to a preliminary hearing?
If you have been charged with a felony in federal court and not yet indicted, you have the right to a preliminary hearing, during which the government must show there is probable cause for the charges. While there can be valid reasons in some cases to insist on a preliminary hearing, in the vast majority of cases it is legally more prudent to waive the preliminary hearing. There are several reasons for this, including loose evidence rules and a low standard of proof that both favor the prosecution, and it can also disincentivize the government from engaging in early discovery. If you or a loved one are charged in federal court, it’s important that you consult with an experienced federal criminal defense attorney to ensure that you make the right decision on whether or not to waive the preliminary hearing.
What should I do if federal law enforcement shows up to my house with a search warrant?
It’s not uncommon for the feds to show up at a property with a search warrant to confiscate certain property without arresting the person. Should this happen, even though you are not charged with anything, you are likely a suspect in the investigation, and for this reason you should refrain from making any statements to law enforcement. Though the questions may seem benign, your answers are likely to incriminate you nonetheless. You must exercise your right to remain silent. This is not say that you should not cooperate with the search; you should. You should also take any paperwork given to you and take down the contact information of the agents. The next step is to immediately contact an experienced federal criminal defense attorney. The attorney can often obtain information about the investigation, allowing you to make informed decisions about how to proceed. In some cases, the attorney may even be able to persuade authorities to drop the case. Also, if an arrest warrant is eventually issued, an attorney can assist in making arrangements for a self-surrender rather than having to endure a public arrest.
If I’m suspected of committing a federal crime, how long does a federal prosecutor have to file charges?
In general, except for capital crimes and child sex crimes, which have no statute of limitations, the statute of limitations for federal crimes is five years. This means that charges must be filed within five years of the date of the alleged offense. Some specific federal crimes have longer statute of limitations that range from six to 20 years.
Also, in some limited circumstances, the statute of limitations can be extended, such as where the suspect is a fugitive. If you or a loved one are suspected of a federal crime, it’s important that you consult with an experienced federal criminal defense attorney to ensure that the statute of limitations is enforced and your rights are protected.
If I’m arrested for a federal crime, can I be released on bond?
Yes. In federal court, in order to be denied bond, the government must prove that the defendant is a risk to the community or a fight risk. Often, a defendant who is not considered a risk, will be released on their “own recognizance” without bail. In other cases, the court may require the defendant to secure the bond and/or be subject to pretrial supervision. If you or a loved one have been arrested on federal charges, it’s important that you consult with an experienced federal criminal defense attorney who can forcefully make the appropriate arguments before the court to ensure that you are released and not detained pending trial.
If I’m charged with a federal crime, should I agree to “cooperate” with the government to receive a reduced sentence?
In most cases, a defendant’s decision to provide relevant information to the government about the possible crimes committed by others will result in a sentence reduction for the defendant. However, the defendant must consider the risks to themselves and their family, and the possibility that the information they provide will not provide “substantial assistance,” and thus not result in a recommendation for a departure in the sentence. This is ultimately a deeply personal decision that the defendant must think long and hard about, and consult with an experienced federal criminal defense attorney, before making a final decision.
If I’m convicted of a federal drug crime that carries a statutory minimum sentence, can I receive a sentence below the statutory minimum?
Yes. There are two ways that a defendant can avoid a statutory minimum sentence in a federal drug case. The first is that the defendant qualifies for what is known as the “safety valve.” To qualify for the safety valve, the defendant must have none or only minimal criminal history, the defendant did not use violence or possess a dangerous weapon during the offense, the offense did not result in death or serious bodily injury to anyone, the defendant did not have an aggravating role in the offense, and the defendant has truthfully provided all information that they know about the offense. The other way that a defendant may avoid a statutory minimum sentence is that the defendant agrees to cooperate with law enforcement and provide the government with information about other persons who may have committed crimes. If the government is able to use the information to prosecute other persons, the government will move for a “substantial assistance” downward departure in the defendant’s sentence. However, a defendant’s decision to cooperate is a significant decision that could impact the defendant in many ways. Any defendant considering doing this should first talk with an experienced federal criminal defense attorney.
Is it true that penalties for drug offenses are more severe in federal court than in state court?
Yes. Penalties for drug offenses are considerably more severe in federal court for two reasons. First, the statutory penalties for federal drug offenses are longer, and include statutory minimum sentences in most cases. Second, the federal sentencing guidelines treat drug offenses harshly. However, there are some limited circumstances whereby a federal drug defendant can avoid the statutory minimum sentence, and actually have their sentenced reduced. If you or a loved one are charged with a federal drug offense, it’s important that you speak with an experienced federal criminal defense attorney to protect your rights and increase your chances for a better outcome.
What should I do if I am being investigated by federal authorities but I am not yet charged?
How long after a federal crime is committed is the defendant arrested?
It depends on the scope and complexity of the crime. Individuals who commit simple crimes (i.e., theft, illegal reentry) will usually be arrested contemporaneous with or shortly after commission of the offense. However, in more complex cases (i.e., white collar crime, drug trafficking), prosecutors may wait until the criminal activity grows in volume. For this reason, criminal suspects may unknowingly be under investigation for months or even years.
If you become aware that you are under investigation, or If you are in fact arrested, it’s important not to make any statements to law enforcement about the alleged offense as it is likely to negatively impact your situation. Your first action should be to retain a federal criminal defense lawyer who can represent your interests and protect your rights.
Are federal charges more serious than state charges?
In most cases, yes. Federal prosecutors are more experienced and have the resources of the federal government at their disposal to ensure they secure a conviction. Also, federal crimes are investigated by powerful investigative agencies such as the Federal Bureau of Investigation, Drug Enforcement Administration, Securities and Exchange Commission, Secret Service, and others. Further, the federal criminal process is more complex and the punishments tend to be more severe. Thus, if you are facing federal investigation or criminal charges, it’s important to retain a federal criminal defense lawyer who can represent your interests and protect you rights.
What are the chances of being acquitted at a trial?
Trial conviction rates in federal court are in excess of 90%. The vast majority of defendants plead guilty pursuant to a plea agreement, rather than risk a longer sentence if they lose at trial. However, every case is different and the choice to plead guilty or go to trial will depend on the evidence and the law relevant to your case. Regardless of whether a case is resolved through a plea or a trial, the experience, skill, and preparation of your attorney can significantly increase the chances of a favorable outcome.
What are the Federal Sentencing Guidelines?
The Federal Sentencing Guidelines are a set of rules that assign “points” based on the nature of the offense, the conduct committed in connection with the offense, and the defendant’s criminal history. The calculation produces a suggested sentencing range expressed in months. The judge is required to accurately calculate and consider the guideline sentencing range in every case. While the guideline sentencing range is not binding, it is an important and central consideration for most judges. For this reason, it’s critical that a lawyer representing a federal defendant have expert knowledge and vast experience with the Federal Sentencing Guidelines.
What are “Booker” variances?
Booker is the name of the Supreme Court case that rendered the Federal Sentencing Guidelines no longer binding but advisory only. As such, federal judges became free to impose sentences outside the guideline sentencing range, often referred to as Booker variances. Variances can be based on numerous different factors relating to the offense, the defendant’s background, or statutory sentencing considerations. As such, a lawyer representing a federal defendant must not only have an expert knowledge of the Federal Sentencing Guidelines, but also of case and statutory sentencing law and sentence mitigation.
Do all judges impose the same sentences for the same crimes?
No. Judges have their own judicial philosophy and temperament. While the Federal Sentencing Guidelines are intended to increase uniformity among sentences, Booker variances are commonplace and must be argued and litigated aggressively for a favorable outcome. A skilled federal criminal defense lawyer will consider both the particular judge in a case and the merits of the case to competently and successfully argue for a mitigated sentence.
If I have to go to prison, can I be paroled or have my sentence reduced for good behavior?
Parole has been abolished in the federal prison system, so inmates serve their full sentences. However, there is the opportunity to earn up to 15% good-time credit. Also, there are rehabilitation programs in the federal prison system that inmates can successfully complete and earn a further reduction in their sentences in some cases.
The most effective way that a defendant can limit the amount of time they serve is to have a skilled federal criminal defense lawyer who can competently and successfully argue for a mitigated sentence.