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What Is a Presentence Report (PSR) and Why Does It Matter?
The Document That Sentences You Twice The presentence report determines more than the length of a federal sentence. It determines where that sentence is served, under what conditions, and with what access to programming that can reduce it. Most defendants learn this too late. The report, compiled by a United States Probation Officer in the […]
read moreHow Mandatory Minimum Sentences Work in Federal Court
The Sentence Before the Sentence The mandatory minimum is not the punishment. It is the architecture of a negotiation that begins the moment the indictment is returned, and in most federal cases, the negotiation is the sentence. The statute prescribes a floor. The prosecutor controls access to every door beneath it. Federal mandatory minimum sentencing […]
read moreUnderstanding the Federal Sentencing Guidelines
The federal sentencing guidelines do not sentence anyone. A judge does, in a courtroom, after considering a set of calculations that most defendants encounter for the first time in the weeks following indictment. Most people who search for information about sentencing guidelines are not engaged in academic research. They are reading because a number has […]
read moreFederal Sentencing
The guidelines do not sentence anyone. A judge does, in a courtroom where the arithmetic of offense levels and criminal history categories has already been performed by a probation officer the defendant did not choose and may never see again. The question is what the judge decides to do with that recommendation, and how prepared […]
read moreRule 35 Motions: Reducing Your Sentence After Cooperation
The sentence has already been imposed, the courtroom has already emptied, and the only mechanism for revisiting the number requires someone other than the defendant to act. Rule 35(b) of the Federal Rules of Criminal Procedure permits a federal court to reduce a sentence when a defendant provides substantial assistance in the investigation or prosecution […]
read moreWhat Is Substantial Assistance in Federal Cases?
The Quiet Mechanics of Cooperation Substantial assistance is the federal system’s most consequential bargain, and most defendants misunderstand its terms before they have finished signing the cooperation agreement. The phrase appears in §5K1.1 of the United States Sentencing Guidelines and in 18 U.S.C. §3553(e), and what it describes is not a reward for compliance. It […]
read moreProffer vs. Plea Agreement: What's the Difference?
The proffer is the most dangerous meeting in federal criminal practice, and most defendants walk into the room believing it protects them. The nickname does not help. “Queen for a Day” suggests generosity, a temporary courtesy extended by the prosecution to someone under investigation. The courtesy, if one can call it that, is conditional, revocable, […]
read moreCan a Proffer Agreement Be Used Against Me?
A proffer agreement protects almost nothing. The document itself, two or three pages of boilerplate that federal prosecutors present as a formality before the session begins, contains language that preserves more of the government’s options than it surrenders. Most clients who sign one believe they are receiving immunity. What they are receiving is a narrow […]
read moreHow a Proffer Session Works in Federal Criminal Cases
The Letter Before the Conversation The proffer agreement is the most consequential document in a federal criminal case that no jury will ever read. Before the defendant speaks a single word in the conference room at the United States Attorney’s Office, before the investigating agents have arranged their files across the table, the letter has […]
read moreShould I Cooperate With Federal Prosecutors? Risks and Rewards
Cooperation with federal prosecutors is the single most consequential decision a defendant will make, and it is almost always made too early. Before the weight of the choice is understood, before counsel has examined the government’s evidence, before anyone has considered what the proffer room will demand, the question is already on the table. The […]
read moreWhat Is a Federal Proffer Agreement ("Queen for a Day")?
The proffer agreement is the most misunderstood document in federal criminal practice. Defendants sign it believing their words cannot follow them into a courtroom. Prosecutors draft it knowing how those words will travel. Between the text of the letter and the reality of what follows, the distance is considerable, and most of the danger lives […]
read moreProffer Agreements & Cooperation
The Document You Sign Before You Speak A proffer agreement is the most consequential document a federal defendant will sign before trial, and it is the least understood at the moment of signing. The agreement states that your words will not be used against you in a subsequent proceeding. That statement is not false. […]
read moreCan I Record My Interview With Federal Agents?
The Federal Baseline The right to record a federal agent exists, in most of the country, before the agent ever arrives at the door. Under 18 U.S.C. 2511(2)(d), federal wiretap law permits the recording of any conversation so long as one party to that conversation consents. If you are the one holding the phone, the […]
read moreNon-Custodial FBI Interviews: Do I Have Rights?
Non-Custodial FBI Interviews: Do I Have Rights? The Gap Between Belief and Protection Your rights during a non-custodial FBI interview are fewer than you imagine, more consequential than you expect, and almost entirely contingent on whether you comprehend them before agents appear at your door. The word “non-custodial” performs a specific legal function here: it […]
read moreCan Federal Agents Lie During Interrogations?
Can Federal Agents Lie During Interrogations? Federal agents are permitted to lie to you during an interrogation, and the legal authority for that permission is older than most of the agents who exercise it. The answer to the question in the title is not complicated. The consequences of that answer are. The Legal Foundation In […]
read moreWhat Happens If I Talk to Federal Agents Without a Lawyer?
What Happens If I Talk to Federal Agents Without a Lawyer? The conversation you had with the federal agents is now the government’s evidence. Not the documents they inquired about, not the financial records they referenced, but the conversation itself, reduced to a few paragraphs on a government form you will never sign, composed from […]
read moreWhen Does Miranda Apply in Federal Criminal Cases?
When Does Miranda Apply in Federal Criminal Cases? Miranda does not protect most people who need it in federal criminal cases, because it does not apply at the moment they assume it does. The protection attaches only when two conditions converge: custody and interrogation. Federal agents understand this convergence better than the people they question. […]
read moreMiranda Rights & Federal Interviews
The Silence That Costs Nothing Miranda v. Arizona protects less than most people believe, and it protects it later than they expect. The warning itself, familiar from courtroom dramas and from the particular anxiety of a first encounter with law enforcement, applies only where two conditions converge: custody and interrogation. In the federal context, those […]
read moreShould I Cooperate With an FBI Investigation?
Should I Cooperate With an FBI Investigation? Cooperation is not a binary. It is a sequence of smaller decisions, each carrying its own risk, and the first one is almost always made before the person understands what cooperation will cost. The instinct to cooperate with the FBI is a reasonable one. It is also, in […]
read moreDo FBI Agents Have to Read Me My Miranda Rights?
Do FBI Agents Have to Read Me My Miranda Rights? The answer is no, not always, and the circumstances under which the obligation does not apply are far more common than most people recognize. Miranda warnings attach to a specific legal event: custodial interrogation. They do not attach to the arrest itself. They do not […]
read moreMiranda Rights & Federal Interview
The Interview That Is Not an Interrogation Federal agents do not read Miranda warnings during most of the interviews that produce criminal convictions. The warning itself, perhaps the most recognized sentence in American criminal procedure, applies to a circumstance most people will never encounter in the way they imagine: the custodial interrogation, conducted in a […]
read moreHow to Tell If the FBI Is Building a Case Against You
The Architecture of a Federal Investigation The federal government does not announce its interest in you. The investigation, if one exists, began before you suspected it, proceeded without your knowledge, and has likely reached a stage you cannot accurately assess from outside. What you perceive as the start of the process is, in the substantial […]
read moreWhat to Do If the FBI Wants to Interview You
What to Do If the FBI Wants to Interview You The Statute That Makes the Interview Dangerous The single decision that determines the trajectory of most federal prosecutions occurs before any charge is filed, before any grand jury convenes, and, in a significant number of cases, before the subject understands that a crime is being […]
read moreFederal Embezzlement Charges and Penalties
Federal Embezzlement Charges and Penalties The crime is complete before the defendant understands it as a crime. Under federal law, embezzlement does not require a plan to steal, does not require permanent deprivation, and does not forgive the person who intended to return what was taken. The moment government property or federally connected funds are […]
read moreFederal Identity Theft and Fraud Charges
Federal Identity Theft and Fraud Charges A federal identity theft prosecution ends, in most cases, with a guilty plea. The arithmetic of mandatory consecutive sentences renders the alternative unacceptable. When each victim’s identity used in furtherance of a predicate felony adds two years of nonconcurrent prison time, and when prosecutors can charge each use as […]
read moreCan I Travel If I’m Under Federal Investigation?
Can I Travel If I Am Under Federal Investigation? The Right You Already Have and the Mistake You Are About to Make The answer is yes. You can travel domestically and internationally while a federal investigation is pending against you, provided no charges have been filed and no court has entered an order restricting your […]
read moreFBI Investigation vs. Arrest: Understanding the Process
FBI Investigation vs. Arrest: Understanding the Process The federal investigation concluded months before the arrest. That is the sentence most practitioners in this area wish their clients had understood before the agents arrived, and it is the sentence that reframes every question a person asks once the process has already begun. Every article on this […]
read moreFederal Sex Trafficking Defense: Human Trafficking Charges
Federal Sex Trafficking Defense: Human Trafficking Charges The federal sex trafficking statute does not require what most people believe it requires. Section 1591 of Title 18 criminalizes a set of acts connected to commercial sex, but the convictions that hold and the convictions that collapse tend to separate at a single junction: what the defendant […]
read moreFederal Sexual Exploitation of Minors: Production Charges
Federal Sexual Exploitation of Minors: Production Charges Fifteen years is the floor. Under 18 U.S.C. § 2251, a first conviction for production of material depicting the sexual exploitation of a minor carries a mandatory minimum of fifteen years in federal prison and a maximum of thirty. No federal judge possesses the authority to sentence below […]
read moreFederal Child Exploitation Charges: SESTA/FOSTA Cases
Federal Child Exploitation Charges: SESTA/FOSTA Cases The government does not need to prove you trafficked a child. Under 18 U.S.C. § 2421A, the federal provision that FOSTA created in 2018, the government needs to prove you operated a platform with reckless disregard that your operation contributed to trafficking. The distinction between the person who commits […]
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