Federal

In this region of the Eastern District of North Carolina, the most common misdemeanor offenses involve driving on the beach on Cape Hatteras National Seashore in Hatteras and Ocracoke. Speeding tickets, Reckless Driving, OUI > .08 BrAC, OUI – Incapable of Safe Operation, Unlawful Possession of Controlled Substances, and Disorderly Conduct cases are very common. If you’re charged with a federal misdemeanor in this area of NC, you will want to hire a qualified federal lawyer who has experience in the federal courthouse in Elizabeth City. Federal misdemeanors can carry harsh sentences, including time in the United States Bureau of Prisons. If you have been issued a U.S. District Court Violation Notice by federal Park Service Rangers, please give us a call to discuss your matter.

Federal Felonies

Federal crimes can range from “white collar” crimes such as wire fraud, bank fraud, and mail fraud, to more dangerous crimes like gun crimes, drug crimes, illegal pornography crimes, and violent robberies. Donahue Defense has handled a wide variety of these federal crimes and has the training and experience to assist those facing federal matters in the Eastern District of North Carolina. Mr. Donahue represents federal clients in Wilmington, Raleigh, New Bern, Greenville, and Elizabeth City and is one of the very few lawyers in the area with experience in federal jury trials.

Most citizens don’t know too much about federal crime and procedure because they are not as common as state prosecutions. I’m providing you with the following timeline as a very broad overview of the court process in a federal felony case. Many variables can change the speed or course of the case, including settlement or plea negotiations and changes in law. This timeline, however, will hold true in the majority of federal felony cases in the Eastern District of North Carolina. I hope it is helpful in explaining where the next several months will lead us.

Federal Case Timeline – Generally

Initial appearance: Felony defendants are usually brought to federal court in the custody of federal agents. Usually, the charges against the defendant are brought by an indictment. The indictment is the product of a federal grand jury proceeding. A group of citizens from the Eastern District of North Carolina have heard the sworn testimony of a law enforcement officer and have determined that there is probable cause to indict/accuse the defendant of a federal felony. Once an indictment is returned by a federal grand jury and a defendant is arrested, the defendant is entitled to a first appearance. This first appearance is typically held before a federal magistrate judge. This magistrate judge will preside over one or two appearances, but the case will ultimately be referred to a federal district court judge (more on district judges below). The prosecutor appearing for the government is called an “Assistant United States Attorney,” or “AUSA.” There are no District Attorney’s or “DAs” in federal court. The public defender is often called the Assistant Federal Public Defender, or an “AFPD.” Private lawyers (like me) who handle federal cases are either retained by the defendant or are paid by the U.S. Treasury are called “Panel Lawyers.” When a defendant first appears before a magistrate judge, he or she is informed of certain constitutional rights, such as the right to remain silent. The defendant is then asked if he or she can afford counsel. If the defendant plans to hire counsel or has already hired counsel, they must waive their right to a court-appointed lawyer. If a defendant cannot afford to hire counsel, he or she is instructed to fill out a sworn statement about personal finances. This statement, or “affidavit” is then submitted to the magistrate judge, and, if the defendant qualifies financially, a Federal Public Defender or CJA Panel Lawyer is appointed. The affidavit is submitted under the penalty of perjury, and must be complete. The magistrate judge informs the defendant of the charges against them and the statutory maximum sentence. The “statutory maximum” is the most jail time that a defendant can receive — it is rarely the actual sentence that is given, but it can be. The magistrate judge then turns to the issue of release, or bail.

Detention Hearings – Bail: If the government wants the defendant detained, the prosecutor will move for detention at the initial appearance. Bail in federal court is controlled by what is known as the Bail Reform Act. There are some criminal offenses that give rise to a rebuttable presumption that “no condition or combination of conditions” will “reasonably assure” the safety of any other person and the community if the defendant is released; or “reasonably assure” the appearance of the defendant as required and “reasonably assure” the safety of any other person and the community if the defendant is released. The government gets an automatic three (court) days to prepare for a bail hearing. These “presumption” cases are for offenses such as drug dealing, child sex offenses including child pornography, and bank robbery. In non-presumption cases, the government may also try to prove that the defendant is a flight risk, or a danger to the community – in those cases, the government also gets three days to prepare for the bail hearing. The defense can also ask for up to five days to prepare for the bail hearing. Defendants seeking bail are then referred to a United States Pretrial Services Officer for a pretrial services interview. The Pretrial Services Officer who interviews the defendant prepares a short life background and criminal history for the court. A magistrate judge must decide whether or not there are any conditions of bond to reasonably assure the defendant is not a flight risk and is not a danger to the community. If bail is granted, most bonds in federal court do not require the posting of money or property. They are called “unsecured” bonds. If the defendant is released at the bail hearing, it is often with conditions. Typical conditions include reporting to United States Pretrial Services, drug testing, and district-wide travel restrictions — it is like being on pretrial probation.

Arraignment: As mentioned above, an indictment is a formal document that contains the federal charges faced by the defendant. It is reviewed by a grand jury, and if there is sufficient evidence to force the defendant to face the charges, then the grand jury signs off on the indictment which is known as returning a true bill of indictment. There can be additional indictments brought in one criminal case – later indictments are called “superseding indictments.” Oftentimes the U.S. Attorney will not file all the charges that are available to them in the first indictment but might “supersede” by filing the additional charges later. This is usually due to a defendant being difficult or recalcitrant in resolving their case. Enhancements may also be filed at a later date, which generally increase the minimum and maximum prison sentence that a defendant will face. The arraignment is the part of the process where the defendant pleads guilty or not guilty to the charges set out in the indictment. A not guilty plea will trigger a trial. A guilty plea moves the case on to the sentencing phase. There’s more information about pleas below. Arraignment is often held before the district court judge who will preside over the case. A district court judge, or “Article III” judge, is appointed by the President of the United States, confirmed by the U.S. Senate, and serves for life. The district court judge will preside over the rest of the case, for the later trial or plea hearing, and for sentencing, if necessary.

Pretrial Motions: There are a variety of pretrial motions that might be filed in a federal case. Most cases don’t require many motions, some require many. These can include motions to dismiss charges or suppress evidence, constitutional challenges, motions for a bill of particulars, motions to strike, motions in limine, and severance motions. The most typical pretrial motion in a criminal case is a suppression motion. In these types of motions, the defense moves to suppress evidence, or to prevent the government from using it at trial. These motions can include suppression of evidence, like a gun or drugs seized in a search, or statements, like a defendant’s confession. The defendant’s motion outlines the facts and law in support of the claim for relief. The prosecutor usually has about ten days to respond to that motion and then the defense has a right to file a final written reply. Sometime thereafter, the magistrate or district judge hears arguments on the motion and takes witness testimony if needed. This is called an evidentiary hearing to resolve any disputed facts. Many motions are dispositive, meaning that if the motion is settled in the defendant’s favor, the case will be dismissed but if the ruling is in favor of the prosecutor, the defendant will be forced to plead guilty or go to trial. Lawyers are ethically forbidden from filing frivolous motions though they are often told which motions they have to file by the defendant. Many defendants tell their lawyers what to do based on advice from “jailhouse lawyers” including advice from the former federal inmate who authored the book Busted by the Feds. I recommend listening to your lawyer, not other inmates or books written by convicts. Inmates are in jail for a reason, and the author of Busted by the Feds was a nonlawyer who died in federal prison.

Plea: Statistically, in the majority of federal cases, the defendant pleads guilty and does not go to trial. According to a recent article in the American Bar Association’s Criminal Justice Magazine, “Approximately 97 percent of all federal criminal defendants plead guilty. Seventy-five percent of the others who proceed to trial are convicted. Almost 99 percent will ultimately be sentenced. Over 87 percent will be sentenced to prison.” These are tough numbers but are factual. When a defendant decides to enter a plea of guilty, he can do it in one of two ways. The first choice is to plead guilty “straight up,”meaning without a plea agreement. Secondly, a defendant can strike a deal with the prosecutor and have a written contract (a plea agreement) drafted with the terms of the plea. A defendant has a right to be informed by his lawyer of every plea offer made by the government. The defendant’s lawyer will also explain the terms of the plea agreement, will discuss a defendant’s sentencing exposure at trial or through the proposed plea, and will review the good and bad evidence that awaits a defendant at trial. Ultimately, however, it is the defendant’s decision alone on whether to take a plea offer from the prosecutor. Keep in mind that the federal prosecutors typically don’t indict a defendant unless the evidence is overwhelming. In the majority of cases, the defendant is not arrested until the investigation is coming to a close and they have all the evidence they need to have a trial that would be a “slam dunk” for the government. Federal agents and prosecutors work much more efficiently and effectively than most state actors.

Trial: A much smaller proportion of federal criminal cases go to trial. The typical federal trial involving a federal felony lasts two days to a week. At the trial, the government puts on a show of evidence for the jury through witnesses and exhibits. The defendant does not have to do anything at trial. It is the government’s case to prove. Although not required to do anything, the defendant has the right to testify – or to not testify, and if he or she does not testify, the jury is instructed that the fact that he or she did not testify cannot be held against the defendant. The defendant also has the right to “confront” (i.e., cross-examine) government witnesses, and can use the subpoena power of the court to secure evidence or witnesses on the defendant’s behalf for trial. The defendant need not prove him or herself innocent; the government bears the burden of proving the defendant guilty beyond a reasonable doubt as to every element of a charge. Only if a jury of twelve citizens unanimously finds every element of a charged offense has been proved beyond a reasonable doubt will a defendant be found guilty of that charge. A “not guilty” verdict will end the case. A good defense lawyer will categorize a case as either not-triable, triable, or winnable. Although the lawyer will use all of their education and experience in categorizing the case, not-triable cases are sometimes won and winnable cases are sometimes lost. The client must be realistic about the chances taken at trial, as they are the ones that must serve the time if convicted.

Sentencing: If a defendant is convicted by either pleading guilty to a charge, or by being found guilty after a trial, sentencing will take place about seventy-five days later if the defendant is in custody, or about ninety days later if the defendant is out of custody. A defendant who is convicted will likely be remanded into U.S. Marshal’s custody after trial, but release is allowed for less serious convictions.

Sometime after the conviction, the defendant will be interviewed by a Probation Officer so that the Probation Officer can write a life history of the defendant, a synopsis of the crime, and make a recommendation to the judge about sentencing. Defense counsel will likely be present for that interview. The Probation Officer will then take information from that interview, from documents submitted by the defendant, and from material provided by the government, and will then prepare a draft pre-sentence report. The draft pre-sentence report (or PSR) is provided to defense counsel and the government before sentencing. The lawyers are given the opportunity to make factual or legal objections to the PSR after receiving it. The court does not receive a copy of this draft report – so the goal is to resolve as many factual or legal errors as possible before a final PSR is provided to the judge. Before sentencing, the final PSR is provided to the judge so that he or she can become more acquainted with the case and with the Defendant before sentencing – the goal of the PSR is to give the judge a “big-picture” view of who stands before them at sentencing. This final PSR describes the defendant’s personal, familial, medical, and criminal background, describes the criminal offense, and calculates the Federal Sentencing Guidelines. It also lists any unresolved objections to the PSR. Also before sentencing, the parties may submit any sentencing memoranda to the court arguing for their proposed sentences.

At the sentencing hearing, the district court judge must resolve any remaining objections to the PSR, make factual findings, and must consider the factors of the key federal sentencing statute in deciding the proper sentence. Among the factors that the court must consider are the Federal Sentencing Guidelines. In addition to a prison sentence, the court will also decide how much restitution is owed, and whether a criminal fine is appropriate. Before imposing the sentence, the court must permit the defendant to speak (or “allocute”). The defendant’s counsel will have good advice on what to say at this point in the sentencing hearing. It is very important for the client to think long and hard about what they say when it is their time to speak – it can make a real difference. Apologizing to the court is very often the wrong approach to allocution. A federal sentence can range from probation to life in federal prison or possibly, death. If a sentence of imprisonment is imposed, the district judge will also impose a term of supervised release whereby a defendant must abide by the law while under post-release supervision or risk additional punishment (see below).

Appeals and Petitions for Writs of Certiorari: If the defendant did not waive the right to appeal in a plea agreement, the defense may appeal both the conviction and the sentence imposed. The public defender or appointed private counsel will continue to represent the defendant, for free, during the appeal. There is a very short period during which the defendant must state his or her intention to appeal, so the subject should be discussed immediately after sentencing. If the defendant does not win the appeal in the United States Court of Appeals for the Fourth Circuit, he or she can file a petition for writ of certiorari with the Supreme Court of the United States. Ordinarily, the public defender or appointed counsel would continue to represent the defendant during the petition for certiorari and, if the writ is granted, during the briefing and oral argument in the Supreme Court. If a case results in a guilty plea or conviction and the defendant appeals, the “panel” lawyer would likely withdraw and the defendant would be appointed a lawyer who regularly handles appeals to handle the case. Many trial lawyers don’t have time or inclination to handle appellate work.

Supervised Release and Violations: Almost every federal offense carries with it a term of supervised release that follows active time. Supervised release is like probation – a defendant must report to the Probation Office, submit to drug testing and abide by the law and standard conditions of supervised release. There are, unfortunately, many ways to violate supervised release – not submitting monthly reports, failing a drug test, or being arrested for new criminal conduct could all result in violations. When a Probation Officer files a motion for revocation or modification of supervised release, they are contained in a charging document called a “Petition.” If the defendant cannot afford an attorney, the public defender will be appointed for these revocation proceedings. The defendant has much more limited rights in revocation proceedings than when facing substantive federal charges. For example, at a revocation hearing there is no jury. The government need only prove the charges by a preponderance of the evidence, instead of beyond a reasonable doubt. Also, hearsay is admissible, so a Probation Officer can simply repeat the allegations of other witnesses at the defendant’s revocation hearing – which makes them very difficult to litigate.

Final Note: Please understand that this is a simplified overview of a complex process. I know you are stressed out about these charges and the punishment they carry but I hope having some knowledge of the process helps ease some anxiety. If I am your lawyer, we will talk about your case, trial, plea, and your potential exposure to federal prison once we have more information. There are many matters we must discuss that are not mentioned in this summary. Please remember that many things will happen during the course of the next several months that you will not be aware of, but rest assured, if I am involved in your case, I will be diligently working on your case. Right now, the only thing you need to focus on is being quiet! Don’t talk about your case – Stay silent. Talk to me and my staff only about your case, we’re protected by attorney-client privilege – anyone else you talk to can be subpoenaed as a witness against you. I look forward to hearing from you.