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

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

3. 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

4. AGENCIES
FBI
DEA
U.S.P.I.S.
IRS - CID
OIG’S

5. Conspiracy/Scheme
Commonly Used Charges
Conspiracy
 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 more
to pursue an unlawful objective, 2) defendant’s knowledge of
objective
and voluntary agreement to join, and 3) an overt act by one or more
members of the conspiracy in furtherance of conspiracy.
Scheme
Similar, but can be only one person
e.g., bank fraud scheme, mail fraud scheme

6. 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)

7. 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.)

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

9. Charging Process
Complaint
Target Letters
Grand Jury Indictment

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

11. 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 to
a proposed Indictment to “return”
Burden of proof = probable cause to believe
that a crime was committed

12. 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

13. 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

14. 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

15. Arrest and Detention
Detention
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

16. Arrest and Detention
Rebuttable 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

17. Pre-Indictment
Client Status
Target
Subject
Witness

18. Show-and-Tell
From U.S. Attorney
Getting discovery or a “Road Map”
understanding of the evidence
against Defendant to make the
decision Pre-Indictment

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

20. If Questionable Case for
Government
Consider:
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

21. 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

22. Pleas of Guilty
Rule 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

23. Pleas of Guilty
Rule 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

24. 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

25. Cooperation
Pre-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 Case
Post-Indictment:
 If determine a good government case

26. 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

27. 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.)

28. 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

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

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

31. Trial
Speedy 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.

32. 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

33. 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?

34. 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.

35. Relevant Conduct
In 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.)

36. 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

37. 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)

38. Misc.
Pre-Trial Diversion
Misdemeanors
“11(c)(1)(c)” plea
“Business decision”
Home detention / Halfway house
Parallel Investigations
“Reasonably foreseeable” drug quantities