TOP 10 DEFENSE MISTAKES IN FEDERAL CONSPIRACY CASES AND HOW TO AVOID THEM

As a Texas Board Certified Criminal Lawyer, I have practiced criminal law exclusively for over twenty years in the State of Texas, where federal prosecutions are almost as commonplace as state and local charges. For example, 2 of the top 5 federal districts in the entire United States for drug trafficking offenses are located here (the Western District of Texas and the Southern District of Texas).

This article summarizes my take, as an experienced Texas criminal defense attorney dealing with federal and state representations, in how mistakes are made all too often in federal conspiracy matters – and how to avoid them.

Alleged member of MS-13 arrested by federal agents (image: FBI).

1. Federal Detention hearing is unnecessarily waived.

Either the U.S. Attorney or the Federal Magistrate can make a motion for detention. Unlike state court, if a federal judge finds that there is no combination of conditions that can reasonably assure the appearance of the defendant at later court proceedings, there’s no chance for a bond.
This means that if the Federal Magistrate finds that there is no combination of conditions that will reasonably assure appearance, then the defendant CANNOT post bail to be released until after the defendant has a trial.

The detention hearing will, in all likelihood, determine where the defendant is going to reside until his/her sentencing or trial. In some cases, a plea of guilty can result in a mandatory detention.

Pursuant to 18 USC §3143, many offenses require the court to detain a defendant that is found guilty, unless exceptional circumstances can be shown. In bigger conspiracy cases where there’s an ongoing federal investigation, the U.S. Attorney knows that he/she will bear the burden of proof at a detention hearing. There may be many other unindicted co-defendants or at large co-defendants whose names are still under seal, the government doesn’t want anyone to find out about.

In many cases like this, the Assistant United States Attorney (“AUSA”) will not only file a Motion for Detention, but will threaten the defense counsel that if their client doesn’t waive the detention hearing, his client will NOT receive the “3rd point for acceptance of responsibility.”

It is true that a defendant can get two levels off of his advisory guideline sentence if he is found guilty should he accept responsibility. Pursuant to USSG 3E1.1 and upon a motion from the government, a 3rd level can be taken off the advisory guideline sentence if the government determines that a plea of guilty was timely such that it assisted them in preventing an unnecessary expenditure of federal resources in prosecuting the defendant.

Don’t automatically waive it!

I often see other defense lawyers just reflexively waiving their client’s right to a detention hearing. First of all, most AUSAs won’t make such a threat unless they really need to do so.  In the case where they make such a threat, there needs to be something else tied to it. Just one level isn’t enough in most cases to give up this important right, in my opinion.

I’ve previously mentioned the ability to get released, which is important to anyone. But some great discovery can be obtained at these detention hearings. Although the rules make these hearings mostly informal and the rules of evidence are substantially relaxed, the government DOES need to present some witnesses.

Often times the AUSA is in a hurry and is not totally familiar with his case. Mistakes can be made at this stage. If you have an experienced and aggressive attorney, you can take advantages of these mistakes.

The Detention Hearing is recorded and a transcript can be made. I’ve often used these transcripts later on to substantially damage the government’s case at a pre-trial Motion to Suppress, for example. Even if there’s a rebuttable presumption of detention pursuant to 18 USC §3142 (f)(1), it can still be rebutted. This means that your lawyer can present evidence that there are strong ties to the community, there’s a history of appearing in court, there’s little ties to foreign nations and little foreign travel and many assets in the area.

A defense lawyer can ask for up to 5 days to prepare for this hearing and the AUSA can similarly move for a continuance for up to 3 days in preparation for this hearing. Bottom line: don’t give up, unless there’s some other much more compelling reason to do so.

2. Probable cause hearing is unnecessarily waived.

This is very similar to number one above. In many cases, a defendant will be arrested on a federal complaint. The U.S. Attorney can file a complaint and detain someone for up to 30 days prior to Indictment.

Before the defendant is indicted, they can have a probable cause hearing pursuant to Rule 5.1(e) of the Federal Rules of Criminal Procedure. The defendant will also get an initial appearance and be arraigned on the federal complaint. The reasons for not waiving a probable cause hearing are exactly the same as listed in number 1 above.
If the AUSA is make the nasty threat, it’s usually not worth the one level the government threatens to take away if you insist on having the hearing. There are, of course, exceptions to this rule, but not many, in my experience.

3. File Motions for Discovery Instead of Letter of Discovery.

The Federal Speedy Trial Act requires that the case go trial no later than 70 days after the plea of not guilty is entered. It seems like a simple rule but like most things, it’s anything but simple in application.

There is a laundry list of exceptions to the Speedy Trial Act. I won’t list all of them. For the purposes of discovery, it’s only important to know that ANY motion for discovery WILL toll the Speedy Trial Act until such time as the judge makes a final ruling on the Motion for Discovery. 18 USC 3161(h)(1)(D). This means that any time after the lawyer files the Motion for Discovery, or any other motions, is excluded from the 70-day deadline in the Speedy Trial Act.

You might say: Well, I need to get my discovery; I don’t have a choice, right? No: the Rules of Criminal Procedure treat a letter for discovery in the same way as a Motion For Discovery. Almost anything a defendant could ever want is covered by this rule and it only requires that “upon a defendant’s request” all of the items covered by the rule made available to the defendant.

Of course, the prosecutor may not give you all of the items you are looking for. In this case, you need to make a more specific request in writing. If the AUSA still won’t turn over the item, only then should you ever file a Motion for Discovery in federal court. Here is a sample discovery letter from my online digital library:

4. Plead Guilty on State Charge Before Federal Charge.

A Federal Judge can and will stack the federal sentence on top of a state sentence if he can do so. But, we must look to USSG 5G1.3 and consider things more carefully.
The first situation is where the defendant is already serving a state sentence which is unrelated to the federal charge and wasn’t included in the defendant’s relevant conduct. In this case, USSG 5G1.3 says that the federal judge shall start the federal sentence AFTER the state sentence is completed.

This means the federal sentence is STACKED on top of the state sentence. This is the situation good defense lawyers will be aware of and work to make sure it doesn’t ever happen.

There is another category of state sentence that IS related to the “instant offense” and WAS used in the Defendant’s relevant conduct. The 2014 amendment to the USSG deals with almost all of these situations in a way that is pretty fair the defendant.

In these types of cases, the guidelines pretty much require that the judge take the state sentence into consideration when sentencing on the instant offense and run the federal sentence concurrently with the state sentence. You can read more about the 2014 amendments which will go into effect on November 1, 2014 here.
Bottom line: Don’t plead a state case before a federal case. It’s just not worth the risk of getting your sentences to run consecutively, in my opinion.

5. Fail to anticipate the Federal case.

Many complex federal criminal cases start off as state cases. This may be the case for a variety of reasons. The two most common scenarios are (1) the state place holder case; and (2) the shopped federal case.

The first scenario is the most common. The feds like to use state charges to hold folks in jail until they are ready to either unseal a sealed indictment or file a Federal Complaint. In these cases, the defense lawyer needs to be able to examine the case like a federal prosecutor or law enforcement agent to determine whether a Federal case is coming.

If so, there are many opportunities the smart lawyer can exploit in state court that he may not get later on in federal court. For example, the defendant will be entitled to an examining trial in Texas state court prior to indictment. The examining trial can be used to force the local District Attorney to establish probable cause at a live hearing.

The smart defense lawyer will use this opportunity to make a good record for a future trial or motion to suppress. I have also used the examining trial hearing to force the federal prosecutor’s hand. In these cases, I have suspected a federal investigation and then forced the investigation to make itself known to me.

At this point, I could beat all of the other lawyers to the courthouse and get a much better opportunity for cooperation with my client or I could persuade the Feds to back off. Of course, every case is different so there’s no way to know until you know. If there are more opportunities for hearings, other than a trial (see #4 above), the good lawyer will exploit those opportunities to make an even better record for future reference.

6. Too slow to hire YOUR lawyer.

Federal magistrates and judges will appoint a government defense lawyer even when the defendant can afford to hire a lawyer. You may ask why this is the case. I’ll leave that up to someone else to discuss, but when you find out that ONLY folks that are arrested and charged with a federal offense are entitled to a government appointed attorney, you get the picture.

The government does not really care if you have a lawyer willing to fight and work hard for you. That’s not their job. Those that CAN hire a lawyer early can usually get to communicate with the investigators like the FBI, DEA, and IRS before the case gets filed.

This is a big advantage in some cases. It is not a secret that over 95% of all federal criminal cases end in a plea of guilty and subsequent sentencing. If it looks like the feds got you, you need to get to the courthouse before your former buddies get there first.

7. Don’t give up.

When most folks find out they are being investigated by the FBI, DEA, BATF, or IRS and an indictment is coming, they just give up. They think there’s nothing they can do up against the big Federal Government.

Nothing could be further from the truth. If you negotiate wisely, you could save yourself a tremendous amount of time in jail. In the past, I’ve negotiated deals that have save clients years of their free lives.

8. Fail to consider the Guidelines before you negotiate with the AUSA.

Your lawyer needs to fully explain the guidelines and how they might apply in your case before he/she calls the AUSA to talk about possible plea deals. There are many different charges that could result in much lower sentences. You need to be aware of these possibilities. Don’t just plead to the indictment!

9. Give up rights and get nothing in return.

I have seen other lawyers do this and it drives me crazy. Why would you have your client sign a plea agreement wherein he/she gives up important appellate rights and receive nothing in return? If you want to plead guilty to the indictment and the AUSA isn’t offering you anything other than the indictment, then don’t sign any waivers! It’s that simple. Anyone can plead guilty without a plea agreement.

10. Failing to get a proffer agreement from the AUSA.

So you and your lawyer have talked it over and you want to help the government out, hoping that you will receive favorable treatment later on. This is normally done through what are called “proffer sessions.”

These are meetings with the government agents between you, your attorney, and the important federal agents investigating your case. Problem is — anything you say can, and will, be used against you.

But you may think: Well they already got me, what difference does it make? It usually can make a huge difference in sentencing.
In most conspiracy cases, the sentence is primarily determined by the Federal Sentencing Guidelines. The primary determiner for a sentence is the “relevant conduct.”

The relevant conduct is mostly determined by how much money the government thinks you attempted to defraud or how much methamphetamine you moved over the last 3 years. You get the picture.

The feds may have you on a wiretap talking about a discrete event, but they may not have the whole story. If you give it to them without a proffer agreement, you are unwittingly increasing your own sentence. Don’t ever do it!   I have provided a sample proffer agreement in my digital library:

As long as you don’t lie, you are covered by what you say. The feds can’t use your own words against you later on at sentencing. You never want to get a 5k1.1 motion for downward departure due to your cooperation but unwittingly increased your own sentence through your statements not under proffer. It’s called spinning your wheels.

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About the Author:

Michael Lowe is a Texas trial attorney practicing criminal defense law in the Dallas area for many years after first serving as a felony prosecutor for the Office of the District Attorney for Dallas County. He is Board Certified by the State Bar of Texas in Criminal Law. Mr. Lowe has tried to verdict over 150 criminal trials so far in the state and federal systems.