Defense And Sentencing In Federal Criminal Trials

Defenses Common In Federal Criminal Trials

Generally speaking, most defenses you can raise in federal court will be the same as those you can raise in state court. These can include…

• Beyond a reasonable doubt,
• Alibi,
• Self-defense,
• Duress, or
• Necessity.

The first and most basic defense is always that the prosecution did not prove the defendant guilty beyond any and all reasonable doubt. If the prosecution doesn’t meet their burden of proof, the defendant must be found not guilty.

A defendant may say that it wasn’t them, they didn’t do it, and have an alibi to that end. This is another common defense that you can raise in both state and federal courts.

Then, of course, there is self-defense or that you had some other justification, such as you were under duress or there was a necessity. This defense is an admission that the defendant did the thing they’re accused of, but for a reason that justifies their actions.

What can be different is whether a defense is a question of law, a question of fact, or a mixed question of fact and law – and that depends on whether it is a pre-trial defense that is determined by a judge before trial or whether it is a trial defense that is decided and determined by the jury. A very good example of that in federal cases is the defense of entrapment.

In many states, entrapment is a question of law. The process of raising this defense looks like this:

• The defense files a motion,
• The court holds an evidentiary hearing,
• Testimony is given, and
• The judge determines whether or not a defendant has been entrapped.

In federal court, entrapment is a jury issue. There are very specific, regimented jury instructions that a jury is supposed to use when making the determination of whether or not the defendant was entrapped.

The law regarding conspiracy is also significantly different in federal cases as opposed to state cases. So many federal cases involve the charge of conspiracy to commit a crime that federal criminal trials are driven by the law of conspiracy. The most important law of conspiracy is the law of co-conspirators.

In general, statements made by another person are inadmissible against anyone else. Statements made by someone outside of a courtroom are called hearsay. However, statements made by co-conspirators that are determined to be part of the conspiracy or in what’s called furtherance of a conspiracy are actually admissible against all co-conspirators.

For that reason, there’s frequently a large amount of time and energy devoted to arguing about whether statements are made in furtherance of a conspiracy. A defendant will often make an argument that involves if and when they withdrew from a conspiracy. If, in fact, you withdrew from a conspiracy, what the conspiracy does is now no longer attributable to you, nor are any statements by co-conspirators from the date you withdrew.

So, the law of conspiracy can frequently have a large and important impact on the government’s presentation of its case-in-chief.

Federal Sentencing And Its Place In The Process

When a defendant gets convicted, whether that’s by trial or by plea, the next step is for the court to order a pre-sentence investigation for the purpose of producing a pre-sentence report. Pre-sentence reports are extremely important in federal cases and are required by law.

The pre-sentence investigation process is very extensive. There is a report which requires the interview of the defendant represented by their attorney. That interview will cover any and all aspects of the defendant’s past – good, bad, and indifferent. It will include…

• Personal history,
• Childhood,
• Employment,
• Education,
• Drug, alcohol, and other substance use and abuse,
• Mental health issues,
• Psychological issues, and
• Physical and medical history.

This pre-sentence report will summarize the procedure of the case and briefly describe the indictment and the factual allegations behind the charge. It will outline the plea agreement, if one exists, and calculate the guideline range. The report can take several weeks to prepare and, typically, a defendant is not sentenced until months following a conviction.

Once completed, the pre-sentence report is sent to the government, the AUSA, and the defense. The defense is obligated to go over that report with their client. The probation department is required to give both parties an opportunity to file objections to that pre-sentence report. Many objections are administrative and easily corrected.

Some examples of administrative objections might be…

• Incorrect year of birth,
• Incorrect number of children, or
• Incorrect place of education.

Objections that are more substantive, like factual accusations relating to the offense or objections to the probation department’s scoring of the guideline range, must be supported in writing by factual reasons as well as legal support for that position.

The probation department will then conduct an investigation in response to the objections. Following their investigation, they will either make a change in the pre-sentence report and adopt the objection or they will add an addendum to the report which states the objection was filed, that they disagree with the objection, and that they are leaving it up to the judge to make a ruling on the objection.

The final pre-sentence report is then circulated to the parties and the court. At this point, sentencing can proceed.

The judge will address the pre-sentence report as the first thing when determining the sentence. The judge will ask both parties if they have any objection to the pre-sentence report and, at this point, any objection in the addendum will be addressed, argued, and ruled upon. The judge is the final determiner of the guidelines. The probation department does calculate and make recommendations about the guidelines, but the ultimate decision about sentencing belongs to the judge.

The guideline range is an important starting point for federal sentences. The guidelines were created to establish uniformity throughout the country and in various circuits and districts. A person who commits a bank robbery in Miami should be looking at the same or similar sentence as a person who commits a bank robbery in Michigan.

In 2005, the United States Supreme Court ruled in United States v. Booker that guidelines cannot be mandatory or binding. The ruling stated that the guidelines are unconstitutional if they are mandatory because it is a violation of the separation of powers. It takes judicial expression away from the judicial branch and puts it in the hands of the legislative branch.

The only way that guidelines are legal is if they are only advisory, not mandatory. So, due to this, the guidelines are now a starting point for the court. From that starting point, the court is allowed to grant a variance above or below the guidelines for any number of reasons. Those reasons are far too numerous to list, but they are controlled by Federal Statute 18 U.S. Code § 3553.

18 U.S. Code § 3553(e) says that a court shall impose a sentence that is sufficient but not greater than necessary to comply with all of the established purposes of sentencing, which include the following:

• The nature and circumstances of the offense,
• The history and characteristics of the defendant,
• Reflect the seriousness of the crime,
• Promote respect for the law,
• Provide just punishment,
• Provide adequate deterrence,
• Protect the public, and
• Provide the defendant with any necessary educational or vocational training, medical care, or other correctional treatment.

Per the statute, the judge has to impose the lowest sentence that is sufficient enough but not greater than necessary to accomplish all of those purposes.

Most judges will take a holistic look at the defendant to establish a sentence that reflects all of these many factors…

• Personal background,
• Physical and mental health issues,
• Any substance abuse problems,
• Offense committed,
• The seriousness of that offense, and
• Deterrence and punishment.

Federal sentences are substantive, complex, formalized, and regimented. They’re long, almost always exceeding an hour, and are very contested. Both parties will almost always file what is called a sentencing memorandum. Sentencing memorandums are frequently long and substantive documents, which can easily be as long as 20 pages.

Sentencing memorandums from the defense will include…

• All of the factual reasons why the court should grant a variance and go below the guideline range,
• A forensic psychological assessment,
• Documentation verifying employment and educational background,
• Letters of support from the community,
• Letters from employers or supervisors,
• Transcripts from high school or university, and
• Any other documentation that humanizes and supports that the defendant is deserving of mercy and compassion.

Once all objections have been heard, argued, and the judge has made their ruling on the guideline range, the parties will proceed to allocution. Given that close to 90% of federal cases end in a plea, it becomes really important to do a good job at allocution and advocacy as it relates to sentencing.

A sentencing advocate is the most undervalued, underappreciated part of federal criminal practice. Good sentencing advocacy can add years to or subtract years from a defendant’s sentence. The importance of sentencing advocacy cannot be overstated.

With the guidance of a skilled attorney for Criminal Law Cases, you can have the peace of mind that comes with knowing that we’ll make it look easy. For more information on Criminal Law in Michigan, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (248) 509-0056 today.