Federal Criminal Process



I have heard stories about cases taking years to go to trial. Will it be years before I get to trial?

Typically, no. With regard to criminal matters, in the vast majority of federal jurisdictions, the process is fairly efficient. If the constituional time to a speedy trial is not waived by the defendant  cases proceed to trial in as few as 45 days. Even the most complex cases are tried within less than one year.

Are my phones tapped?

Probably not. Wiretaps can be conducted only if authorized by a U.S. District judge. The process involved in getting a federal judge’s authorization to conduct a wiretap is very burdensome for prosecutors. Even more burdensome is the process of monitoring a wiretap, or listening to the conversations that take place. Wiretapping is something that is done only infrequently, and usually prior to indictment. Typically, it is safe to assume that after indictment your phones are not tapped. However, to play it safe, don’t say anything on the phone that you don’t want to hear some day in open court.

One precautionary measure is to consider using prepaid phones; these phones do not come with a contract and can easily be disposed of if you are concerned they may have become compromised.

If I am sentenced to prison, how long will it take before I am released on parole?

Parole no longer exists in the federal system. Therefore, if you are sentenced to prison, you will not be released early on parole.

On sentences longer than one year (1 year and 1 day or more), federal inmates automatically earn a reduction of 54 days per year based on good behavior. This means that if you stay out of trouble, your sentence is automatically reduced by 54 days per year. For example, on a 2-year sentence, the reduction for good behavior would allow you to be released after serving only approximately 20 months. Good time credit is given automatically based on good behavior. It can only be taken away from an inmate after disciplinary hearings that routinely follow any prison infractions.

Given the overpopulation of our prisons, the Bureau of Prisons is allowing nonviolent US citizen inmates to serve the last 2 to 6 months of their sentence in a halfway house or on home confinement. Typically, an inmate in a halfway house or home confinement situation is allowed to seek or engage in employment during normal business hours, but must remain at home or in the halfway house during evenings and weekends. Typically, one would be allowed to leave the halfway house or home confinement for other necessary matters, including such things as visits to doctors and dentists and grocery shopping, etc.

For those with documented substance abuse problems, the Bureau of Prisons offers a 500-hour drug treatment and counseling program. This is an intensive program that includes group therapy, education and counseling regarding substance abuse issues. Those that complete the program successfully can have their sentence reduced by up to one year.

If you are sentenced to prison, obviously you need to stay out of trouble so that you can get all of your good time credit. Further, if you have a substance abuse problem, it is imperative that you advise your lawyer of said problem and assist him or her in gathering up any documentation which will support your claim of suffering from a substance abuse addiction. Space is limited in the 500-hour comprehensive treatment program, and a recommendation from your sentencing judge that you participate in the program will help you gain admission to the program as soon as possible. If your white-collar offense was due in part to substance abuse, the 500-hour program is a wonderful opportunity to get the treatment you need. Further, a 1-year reduction in sentence should be most welcome.

If I am sentenced to prison, where will I serve my time?

You could serve your time just about anywhere in the United States, as there are federal facilities in most of the 48 contiguous states. Some states like Texas and California have a number of federal facilities.

Within a couple of days of sentencing, the Bureau of Prisons begins what they call the designation process. As part of this process, the Bureau determines the security level that is appropriate for the now-sentenced defendant. Security levels in federal facilities are the following: super-maximum, maximum, medium, low, and camp. A defendant’s security classification requirement is based upon a number of factors, including the following:

The length of the sentence. (Longer sentences dictate higher security classifications.)

Whether the offense for which the defendant has been sentenced is a violent offense. (Violent offenders require higher security classifications than nonviolent offenders.)

The length of the defendant’s criminal history. (Those with longer criminal histories require higher security classifications.)

Whether there are violent offenses in an individual’s criminal history. (Those with violent offenses in their criminal history require higher security classifications.)

Whether dangerous weapons, including firearms, played a role in the offense for which the defendant was sentenced. (If dangerous weapons were involved, a higher security classification may be appropriate.)

Once the Bureau arrives at a security classification for a particular defendant, the Bureau will designate, or assign, that defendant to a facility based upon space available. The Bureau does try to designate inmates to facilities as close to their home as possible. However, security classification and space available are always the overriding factors.

If it appears that prison is a likely sentence for you, it is imperative that you determine what geographical area of the country would be most convenient for you to serve your time. Next, you need to sit down with your lawyer and discuss geographic considerations. Your lawyer can request that the sentencing judge recommend that you be incarcerated as close to your home city as possible. If, for example, your elderly parents or young children plan to visit you frequently but they are unable to travel long distances due to age, health, or finances, it is important that the sentencing judge be apprised of the situation. There are some federal judges in the United States who refuse to make recommendations as to geographic location for incarceration; however, most judges will make such recommendation if the recommendation is properly asked for, and especially if there is supporting documentation. You will need to discuss this matter with your lawyer prior to sentencing.

Whether or not the federal judge is willing to make the recommendation that you request, your lawyer can write directly to the Bureau of Prisons and provide any documentation regarding your family situation that would support a designation to a certain geographic area. Again, the Bureau does its very best to accommodate geographic requests where security classification and space available permit such accommodation.

I heard that if I am convicted, the federal government can seize all of my assets.

The federal government cannot seize any of your assets simply because you are convicted of a federal offense.

If federal prosecutors can prove that a particular asset was either purchased with the proceeds derived from criminal activity or was used to promote criminal activity, said assets can be ordered forfeited to the federal government by the US District Judge.

If, for example, you are convicted of a federal fraud offense but all of your assets were purchased with funds derived from legitimate employment OR business activity, your assets should not be the subject of forfeiture proceedings. If you purchased any assets, whether they be homes, clothes, or boats, with even some proceeds derived from criminal activity, those assets are at risk for forfeiture. If you have significant assets, whether or not they were purchased with legitimate proceeds or ill-gotten gains, it is imperative that you discuss possible asset forfeiture with your attorney.

If your home or business has been raided and certain assets have been seized, please understand that forfeiture is not complete. The seizure is merely the first step in the forfeiture process. Despite the fact that your assets have been seized, you have the right to contest attempted forfeiture by the government. If your assets have been seized, you need to discuss this matter with your lawyer as soon as possible. Sometimes your lawyer will be able to negotiate for the return of your property in only a couple of days. Other times, it will be necessary to go through asset forfeiture proceedings in court. Nonetheless, the mere fact that the Feds have seized your assets does not mean that the assets have been forfeited. Again, you have the right to contest any forfeiture and should get with your attorney as soon as possible to plan your strategy.

If I am convicted, will I be forced to pay restitution?

The sentencing judge is required by law to order restitution as a part of the sentence. For example, if you are convicted of participating in a bank fraud scheme which caused a $300,000 loss to a bank, you will be required to reimburse the bank in the amount of $300,000. If you are found to be the sole participant in the bank fraud scheme, you alone will be required to reimburse the bank in the amount of $300,000. If, for example, you are one of three participants, restitution will be joint and several. This means that all three defendants will be ordered to pay restitution; however, if one or more defendants is unable to pay, the total amount of restitution could be required from the one defendant with ability to pay.

Using the bank fraud example, you can be convicted of bank fraud if you received money as part of a fraud scheme. You can also be convicted for making false statements to a bank in a loan application, even if the scheme is stopped prior to your receiving funds. If the bank did not lose any funds as part of scheme, you will not be required to pay restitution.

Restitution is a very important matter. Because prison looms as such a terrifying possibility, white collar defendants many times focus exclusively on whether or not they will go to prison. Nonetheless, restitution is a very serious matter that you should discuss in detail with your lawyer prior to entering any plea bargain, and certainly prior to sentencing. Your objective should be to determine whether you must pay restitution, and what amount of restitution is appropriate. If there is a disagreement between your side and the government as to the appropriate amount of restitution, this matter can be litigated at a sentencing hearing.

I am charged with a nonviolent fraud offense, and I have seen cases where even murderers get probation. Even if I'm convicted, won't I surely get probation?

Under statute, federal fraud cases typically carry the following sentencing ranges: 0-5 years, 0-10 years, 0-30 years (bank fraud). Prior to the enactment of the Federal Sentencing Guidelines, regardless of the nature of a fraud scheme and the dollar amount involved, each defendant would face the entire statutory range.

Under the current Federal Sentencing Guidelines, the judge is required to do a Guideline calculation prior to imposing sentence. The Guideline calculation takes into account the dollar amount involved in any fraud case, the nature of the defendant’s participation, (i.e., whether he was a leader in a conspiracy to commit fraud or whether he was only a minor participant), and the defendant’s criminal history. The Guideline calculation produces a Guideline Range that is usually much narrower than the statutory range. For example, when the Guidelines are applied to a fraud charge where the statutory range is from 0-5 years, the Guidelines could narrow the actual range to 18-24 months or a similarly narrow range. Once the Guideline Range is established, except for very limited circumstances where the judge can go below the bottom of the Guideline Range or above the top of the Guideline Range, the judge must sentence within the Range.

In certain cases, the narrowing of the Guideline Range is a good thing. Using the example above, the application of the Guidelines takes the sentencing range from 0-60 months and narrows it to 18-24 months. The good part is that 24 months becomes the maximum the judge can impose. The bad part is that 9 times out of 10, the judge cannot sentence below the bottom of the Guideline Range. As a practical matter, many white collar crime offenders who were good candidates for probation prior to the enactment of the Sentencing Guidelines now serve prison time.

You must not become complacent and feel that simply because your offense is nonviolent that you will not be sentenced to prison. It is important that you retain an attorney very experienced in federal criminal defense and that you discuss possible Guideline calculations with your white collar crime attorney.

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