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By Michael Lowe, Esq.
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.
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, theres 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 theres 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 doesnt 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 doesnt waive the detention hearing,
his client will NOT receive the 3
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
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.
Dont automatically waive it!
I often see other defense lawyers just reflexively waiving their clients right to a detention hearing. First
of all, most AUSAs wont 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
isnt enough in most cases to give up this important right, in my opinion.
Ive 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. Ive often used these transcripts later
on to substantially damage the governments case at a pre-trial Motion to Suppress, for example. Even
if theres 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, theres a
history of appearing in court, theres 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: dont give up, unless
theres 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
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, its 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 in 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, its anything but simple in application.
There is a laundry list of exceptions to the Speedy Trial Act. I wont list all of them. For the purposes of
discovery, its 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 dont 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 defendants 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 wont 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
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 wasnt included in the defendants 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 doesnt ever happen.
There is another category of state sentence that IS related to the instant offense and WAS used in the
Defendants 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: Dont plead a state case before a federal case. Its 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 prosecutors hand. In these
cases, I have suspected a federal investigation and then forced the investigation to make itself known to
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 theres 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. Ill 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. Thats
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. Dont 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 theres nothing they can do up against the big Federal
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, Ive 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. Dont 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 isnt offering you anything other than the indictment, then dont sign any waivers! Its 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. Dont ever do it! Here is sample proffer agreement from my online digital library.
As long as you dont lie, you are covered by what you say. The feds cant 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.
Its called spinning your wheels.
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.