DALLAS CRIMINAL LAWYERS.: FEDERAL, STATE & APPEALS - BRODEN & MICKELSEN LLP

Criminal Defense in Federal Court

Frequently Asked Questions

How long will it take to resolve my case if I am charged with an offense in federal court?

Unlike state court, criminal cases tend to progress quickly in federal court. Generally, the Speedy Trial Act requires that an indictment must be sought within thirty days of a person’s arrest. Similarly, although there are exceptions for complex cases and cases requiring pretrial motions, the Speedy Trial Act requires that a case be tried seventy days from either the date a person is arrested or the date an indictment is returned against the person, whichever is later.

What are some of my important rights in federal court?

• You have a right to refuse to make any statements. If you have a lawyer, never make a statement to anybody without talking to your lawyer first.

• If you are charged with a felony, you have a right to have your case presented to a grand jury where a group of citizens vote as to whether there is probable cause you committed the crime charged. If you are arrested for a felony offense before an indictment is returned, you have a right to a “preliminary hearing” where a magistrate judge determines if there is probable cause you committed the crime charged.

• You have a right to be represented by an attorney and to have an attorney appointed by the court if you can show that you are unable to hire an attorney.

• You have a right to a detention hearing if the government seeks to keep you in jail pending your trial.

• You have a right to discover the evidence against you.

• You have a right to have the government prove any charge against you “beyond a reasonable doubt.” The “beyond a reasonable doubt” standard is the highest standard of proof that exists in the American justice system.

• You have a right to a speedy jury trial. Unlike in state court, a jury in federal court only decides the issue of guilt and innocence, not the sentence.

• If there is a trial, you have a right to testify at the trial. On the other hand, you cannot be forced to testify and, if you chose not to testify, that fact cannot be used against you.

• You have a right to use subpoenas to make witnesses come to court and testify on your behalf at any trial.

• You have a right, if there is a trial, to have your lawyer cross examine the government’s witnesses.

• You have a right to appeal your case and, if you cannot afford a lawyer, you have a right to an appointed lawyer on appeal.

How do the sentencing guidelines work in federal court? Am I eligible for probation?

The federal sentencing guidelines are very complex and is the primary reason that you need a lawyer very experienced in federal criminal defense if you are charged with a crime in federal court.

The sentencing guidelines calculate prison sentences using a table that takes into account, among other things: your criminal history, all of your criminal conduct, whether you accepted responsibility for the charges against you, and your role in the offense. The sentencing guidelines also determine if you are eligible for probation or home confinement (usually only those with no criminal history or a minor criminal history qualify for probation or home confinement). Generally speaking, a judge must give strong considerations to these guidelines while imposing a sentence and, while the guidelines are not “advisory” based upon the Supreme Court’s “Booker decision,” most federal judges in Texas are following them in most cases.

In some circumstances, the judge can “depart” or “vary” upward or downward from the sentencing guidelines in a particular case. Downward departures are most frequent in cases in which a defendant cooperates with the government by giving information regarding other people.  Again, it is important to retain a lawyer who works with the federal sentencing guidelines on a daily basis and is familiar with how the guidelines are applied and the exceptions to the guidelines.

I am charged with a drug offense in federal court and have heard that there are severe penalties for drug cases in federal court, is that true?

Yes, this is very true. Most drug cases involve not only the sentencing guidelines, which are quite harsh in drug cases, but also involve mandatory minimum sentences which are dependent upon the amount of drugs involved. Moreover, a defendant can be held accountable for drugs possessed by another person simply if the defendant and the other person engaged in “joint criminal activity” and the other drugs were “foreseeable” to the defendant. Sentences are particularly harsh in cases involving crack cocaine. For example, if it is found that a defendant, with no criminal history, possessed with the intent to distribute 280 grams of crack (or even if only part of the 28 grams was possessed by the defendant and the rest was possessed by a coconspirator and “foreseeable” to the defendant), the defendant faces a mandatory minimum sentence of ten years in prison. Learn more about our federal drug experience.

I have been offered a plea bargain instead of going to trial in federal court, should I accept the plea bargain?

It is impossible to provide a general answer to this question, although most cases are generally resolved through a plea bargain. In deciding whether to accept the plea bargain, the two most important things is to make sure you understand all the consequences of the plea bargain and to make sure you have confidence that your lawyer is acting with your best interest in mind. Some things to make sure you understand before accepting a plea bargain in federal court: (1) What will you be admitting to? (2) Does the plea bargain provide for a specific sentence? (3) Do you fully understand how the sentencing guidelines will affect your case and whether you will be eligible for a downward departure or subject to an upward departure? (4) Are there any mandatory minimum sentences that apply to your case? (5) If you are not a United States citizen, will the plea bargain affect your ability to remain in the United States? (6) If there will be a sentence of confinement, do you understand how “supervised release” works? (7) Are you waiving your right to appeal the application of the sentencing guidelines or will you be able to appeal how the trial judge applies the guidelines? Need more information, we wrote a detailed blog post about federal plea agreements here.

I have to meet with a probation officer who will be preparing my presentence report, should my lawyer go with me to this meeting?

Absolutely. The probation officer will do the preliminary calculation of your sentencing guidelines and, therefore, will have a great deal of influence on your ultimate sentence. Your lawyer owes it to you to attend this very important meeting in order to make sure that nothing is said which could have a detrimental effect on how your guidelines are calculated.

I either lost my trial or pleaded guilty in federal court, but I am not satisfied with the outcome, is there anything I can do?

Following a trial or plea, you may appeal your case to the United States Court of Appeals provided you file a Notice of Appeal within fourteen days of the judgment. Also, be sure that as part of a plea agreement, you did not waive your right to appeal. If you lose an appeal in the Court of Appeals, you can then ask the United States Supreme Court to consider your case.

The United States Supreme Court picks and chooses the cases it will hear and, as a result, it hears only those cases raising issues that might have an effect on many different cases. After losing an appeal, you can file a post-conviction petition for a Writ for Habeas Corpus if you believe you were denied a constitutional right or if you believe your lawyer was ineffective. Again, however, make sure you did not waive your right to file such petitions as part of your plea agreement. Finall

Will I serve my whole sentence in a federal case?

Parole has been abolished in the federal system. If you are sentenced to prison, you are eligible for fifty-four days good time credits for sentences of more than one year. Therefore, you will usually serve eighty-five percent of your sentence. A criminal defense attorney experienced in representing individuals charged in federal court can talk to you about such things as drug and alcohol rehabilitation programs which may serve to reduce your sentence.

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