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Being on the receiving end of a federal criminal indictment can be a frightening proposition. The federal government has virtually unlimited access to any and all of the resources it needs to pursue its case against you, and federal prosecutors are notorious for their tenacity and skill. If you’ve been accused of a federal crime in New York, a federal criminal defense attorney who has the savvy to take on the feds and isn’t afraid to go toe-to-toe with a federal prosecutor may become a necessity.

The list of federal crimes can include any offense that could impact individuals or entities beyond the borders of the home state. Examples include kidnapping, homicide and drug trafficking, as well as white collar crimes such as bankruptcy fraud and cyber crimes. In an era where terrorism poses a very real and constant threat, anyone alleged to be involved in a terrorist activity is also likely to be accused of a federal crime.

Spodek Law Group: Committed Federal Criminal Attorneys in New York

The Spodek Law Group can provide you with a capable federal criminal lawyer in New York City who is willing to go the extra mile to protect and enforce your legal rights. Your federal criminal lawyer will do whatever it takes to represent your interests, whether it’s mounting a vigorous defense in a court of law or negotiating with federal prosecutors to reach a fair and equitable plea agreement. You’ll get a federal criminal defense lawyer in NY who possesses the sound judgment to advise you whether cooperating with the feds or continuing the fight is likely to be the right move for you.

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Spodek Law is a family owned and operated firm that treats each client as an individual instead of a case file. Our clients know we’re available around the clock to provide assistance or reassurance when needed. Our people-oriented approach has enabled us to establish a large and loyal client base that has sustained our practice for nearly four decades.

Federal criminal cases are different from state criminal cases in terms of the pace, plea/bargaining process and penalties. In New York City, federal crimes are prosecuted by the Attorney’s Office. This article seeks to discuss federal crimes, the court process and how NYC federal lawyers can assist in such cases.

What are Federal Crimes?

These are a violation of laws or statutes enacted by the U.S. Congress. Federal crimes differ from state crimes in the sense that the latter are a violation of laws or statues enacted by a local authority or the state legislature. Federal crimes are more concerned with addressing nationwide criminal activity.

Examples of Federal Crimes
Bank robbery
• Band fraud
• Counterfeiting
• Small business loan fraud
Merchant cash advance fraud
• Civil rights offenses
Mail fraud
Health care fraud
• Firearms offenses

History of Federal Sentencing
Before 1987, federal judges sentenced persons depending on their individual cases. Judges had discretion to hand out maximum penalties. This system was such that there was a great difference between the sentences hand down to individuals situated in different places. These differences were addressed by the setting up of the United States Sentencing Commission that was responsible for developing a standardized sentencing system. This commission enacted sentencing guidelines that outlined uniform sentences for all federal crimes. These guidelines provide that an individual sentence should be based on the type of offense charged and an individual’s criminal history.

In 2005, significant changes were made to the federal sentencing process. The Supreme Court in Booker stated that the guidelines for sentencing were not mandatory and also changed the process of appeal for a federal sentence. This means that federal judges do not have to sentence a defendant following the sentencing guidelines. However, they must take these guidelines into account when sentencing.

The Federal Sentencing Process
If a defendant pleads guilty, it always results from a plea agreement. This is an arrangement between the prosecutor and defendant on what action the defendant is going to accept guilt and what the sentencing shall be. The defendant will then confess their guilt to the judge in what is referred to as the allocution.

Pre sentence Report
Following the allocution, your case is headed towards sentencing. First, the U.S. Department of Probation arranges for a pre-sentence interview. During the interview, the probation department drafts a pre-sentence report (PSR) and the defendant is given an opportunity to correct the report if there are any omissions or mistakes. Thereafter, the PSR is handed to the judge and contains a recommendation on the suitable sentence for the defendant’s crime.

The Sentencing Memorandum
The defendant is afforded the opportunity to justify their actions before the court through their attorney. The defendant’s attorney presents to the court a sentencing memorandum that persuades the judge that the defendant should get a lesser sentence because of the nature of the defendant and the circumstances that led to the crime.

The Sentencing
After the judge receives the pre sentence report, prosecutor’s recommendation and sentencing memorandum, he/she is ready to issue a sentence. A judge may choose to follow the sentencing guidelines or depart up or down when issuing a verdict. Some of the factors that a judge considers before sentencing include:

• Whether the defendant is a repeat offender or first time offender
• Whether the defendant was the main offender or an accessory (assisting the main offender)
• Whether the defendant performed their criminal actions under duress or great personal stress
• Whether somebody was hurt
• Whether the criminal act was done in a way that would not have resulted in anyone getting hurt
• Whether the defendant was cruel, destructive or vindictive when committing the crime
• Whether the defendant is remorseful

Federal Arrest Process

Being arrested on federal charges is difficult. There’s no substitute for experience, and knowledge. You need NYC federal criminal attorneys who understands how the federal arrest process will unfold, and how to handle it in a safe manner.

Sometimes, you might be aware of an on-going federal criminal investigation. The FBI might come talk to you, or they may execute a search warrant on your home. At this point, or even before, you’ll want to speak to a NYC Federal criminal lawyer to help you – and protect your rights going forward. Speaking to the FBI without a criminal attorney is not in your interests.

If a federal agency makes no attempt to meet with you before the arrest, then your going to need an immediate response when arrested. You should seek a federal attorney who can handle New York cases and help you. You have the right to remain silent – but need an attorney to help get you out. Upon your arrest, federal agents will want to take a statement from you or talk about your case. They may not inform you of your rights. On occasion, federal agents will let you make a phone call, or let your loved ones know to contact your attorney for representation. No matter how nice they are – you should tell them that you want to contact your federal criminal lawyer – and don’t want to answer any questions about the charges. The agents may try different ways to discuss your case with you. Once you indicate you want your attorney, they cannot question you further.

The agents will bring you to a local office, in order to gain your personal information and obtain your fingerprints. You shouldn’t talk about the case, but can tell them about accurate information, like your name, DOB, address, etc. It’s likely they have this information already. Giving fake information will create delays, and make you look like a flight risk.

After agents complete their initial questioning, they’ll bring you to a federal district court courthouse. This may not be where the case is done later. This is simply where you’ll have a meeting with the officer from the pre-trial services, who’ll make a recommendation to the court about whether any bail is appropriate. The decision is based on their experience, and whether they think you’ll make your appearance in court. You should behave, and cooperate, with the PTS officer. They will ask questions about your legal status, and other such information. You shouldn’t discuss your case. You want to make it appear to the PTS officer that you will appear in court, and not flee. Use your ties to the community, your ownership of property, etc, as proof of your sincerity. The officer will recommend a bail package, which will guarantee your appearance in court. This is not binding on the judge, but it may taken into consideration.

Once you’re interviewed by the PTS, you’ll be kept in a holding cell until the judge is ready to see you. This can take some time, depending on the judge’s availability. If you’re awaiting your attorney, then it will not happen until the attorney is there. You will have an opportunity to chat about your complaint with your attorney.

It’s highly suggested you contact a federal criminal attorney as quickly as possible. Our federal criminal defense attorneys can answer questions you have about your case, and explain what happens next. We can help negotiate your surrender, and help build a defense.

Consequences of a Federal Investigation

The FBI is commonly known as the federal agency that handles all of the arrests for the US Attorney’s offices throughout the NY metropolitan area. There are numerous agencies, which may conduct an arrest. Generally, there are a few reasons why an agency from the agency will reach out to you. You are a witness, a person of interest, a subject, a target, or there is an arrest warrant for you.

Being a witness
If you’re a witness, it doesn’t mean you observed a crime. Instead, you have information that law enforcement agencies believe may be helpful in an investigation – to help either help prove someones guilty or innocent. It’s critical, you remember you are the subject/person of interest – and have the right to a NYC federal lawyer, and the right to remain silent. You shouldn’t be intimidated, or be nervous and take rash actions. This could make matters worse, or make you appear uncooperative. No branch of the government can force you to speak to them in your home, or anywhere else. You have the right to an attorney before speaking with them. Unless you’re arrested, or have a Federal subpoena – you don’t need to go anywhere the FBI. AS a witness, it’s critical you realize – that your words can be used you against you. If you lie, then those words can be used to hurt you. You can be charged with lying to a Federal Agent, and with obstruction of justice. Each of these crimes is punishable by up to 5 years in federal jail.

Regardless of whether you were aware, or not, of any wrong doing, or whether you possess information that may be evidence – it’s crucial you protect yourself and hire a NYC Federal criminal defense lawyer. A competent attorney can help you prepare for the process, and assist you in preventing any embarrassing – and incriminating statements from being said. Failure to secure a criminal attorney could expose you to future criminal liabilities, and create a hardship for you and your family.

Being a person of witness
Since 1996, federal agencies have used the term person of interest. This is not a legal term though. It’s simply a term used when agencies want to talk to someone about a criminal investigation. It means the agencies believe the person of interest was involved in a crime, in one way or another – but they don’t have information to legally charge the person.

The US attorney’s office, or some other federal agent will reach out to you for a statement. They’ll ask to answer questions, or serve you with a subpoena. It’s crucial you get a criminal attorney. You are one step away from being accused of a crime. Anything you say can and will be used against you. The agencies goal is to get incriminating answers from you during their conversation with you. Depending on the answers you give, you could be arrested on the spot. That’s why you need a NYC federal lawyer to help you. Barring some agreement that your attorney has in place, you could be highly exposed.

Subject of a Federal Investigation
If you’re the subject of a federal investigation, law enforcement officers from government agencies may try reaching out to you in person, or by phone. In doing so, they’ll tell you that you aren’t in trouble – but they want to speak to you about a case. Alternatively, they might say you have information about an on going investigation. Subject of an investigation is a person who has done something which is being looked at within a Grand Jury’s investigation. If you are the subject of an investigation, you are going to be told this before you are allowed to testify. It’s crucial you hire a NYC federal lawyer to prevent any mistakes from being made.

Target of a Federal Investigation
The target of a federal investigation is a person whose being investigated as the primary antagonist behind a crime. This is the prime defendant in a case. If you find yourself in this situation, you need to hire an attorney. In this situation, you should assume you are going to face criminal charges.

Warrants issued for your arrest
If the FBI has issued a warrant for your arrest – then it’s like you’ve been indicted by the Grand Jury, or Judge. There is a criminal complaint against you, and there’s enough evidence to pursue the charges. Officials have made a determination there’s enough evidence to allow the US Attorney’s Office to proceed with a felony charge against you. Unless you have proper representation, you could be incarcerated for months, or decades. If a warrant is issued for your arrest, the FBI will take you into custody. You will be arranged, and bail will eventually be set. Agents with search warrants will try to retrieve criminal evidence against you.

Can I Be Convicted of Perjury By Saying “I Don’t Remember”?

When a witness testifies in court, they are obligated to swear an oath that the testimony that they are about to give is truthful. The reason why courts require people to swear an oath to tell the truth prior to testifying is to emphasize the importance of the “truth” during a legal proceeding. The “truth” is the foundation of any legal system. During a court proceeding, there are necessarily conflicting testimonies presented. This is expected. But not everyone who presents conflicting testimony is lying. Sometimes people are simply mistaken. Perjury, however, involves a person intentionally making false or misleading statements. But can you be convicted of perjury for saying, “I don’t remember?” Well, it depends.

Perjury

Perjury is a crime under both state and federal law. Perjury involves a person knowingly making false or misleading statements while under oath and subject to penalty of law. The courts take the crime of perjury seriously because when a person knowingly present false statements in court, they are impugning the integrity of the court system and this can lead to a miscarriage of justice. Under 18 USC section 1621, a person convicted of perjury faces fines and up to 5 years in prison.

Proving that someone has committed perjury, however, can often be difficult. First off, one important thing to remember is that not all intentionally false or misleading statements made by a person while he is under oath or subject to penalty of law are considered perjury. The crime of perjury is only committed when a person intentionally makes a false statement about facts that are material to the outcome of the legal proceeding. For example, if a person knowingly lies about his age during sworn testimony, he has not committed the crime of perjury unless his age is materially relevant to the outcome of the case at hand.

Perjury for Saying, “I Don’t Remember”

While on the face of it saying, “I don’t remember” seems like an easy way out of a difficult or uncomfortable situation. After all, no one can get inside your head and see what’s going on, right? Sure that is true. But, however, things are not that simple. Whether or not you have committed the crime of perjury depends upon several things.

First, did you knowingly make a false statement when you said “I don’t remember?” Second, were you under oath or otherwise subject to penalty under the law when you made the statement? And finally, did you make that statement about something that was material to the outcome of the legal proceeding? If the answer to all of these questions is yes, then you are probably guilty of the crime of perjury. But so what? The question isn’t whether you committed perjury by saying, “I don’t remember,” but rather whether or not you can be convicted of perjury for making that statement.

For a prosecutor to convict you of perjury for saying, “I don’t remember,” he has to have evidence to the contrary; just like in any other case. As you can imagine, it can be very difficult for a prosecutor, or anyone else for that matter, to prove what you do or do not remember. So, for the most part, as long as there is no evidence available to the prosecutor that proves otherwise, you’re okay.

However, there may be contradictory evidence out there that you either do not know about or that you have forgotten about. For example, the police may have a lawfully recorded surveillance tape that shows you talking about the things that you claim you don’t remember. Or, you may have made a prior statement under oath that shows that did, at that time, remember the events that you are now claiming that you can’t recall.

As you can see, the answer to the question of whether or not you can be convicted of perjury for saying, “I don’t remember” is complicated and fact dependent. If you are in a situation where you think that you may be subject to a perjury charge, you should immediately contact a reputable criminal attorney.

A criminal attorney knows that the prosecutor has to prove his case beyond a reasonable doubt. In these types of cases, a criminal defense attorney has a multitude of legal defenses that he can raise on your behalf to get the charges dropped. Don’t try to handle this type of case on your own. There is too much at stake. Call a good criminal defense attorney right away.

How Does a Prosecutor Decide Whether or Not to File Charges?

If there is evidence that you have broken the law, it is possible that you could be formally charged with a crime by a prosecutor. However, there is no guarantee what the exact charge or charges may be or if any will even be applied in your case. What are some factors that a prosecutor may consider before determining whether or not to proceed with a case?

Is There Enough Evidence to Support the Charge?

The first question that a prosecutor must ask is whether or not there is enough evidence to support a charge. In many cases, there are multiple elements that must be proven to establish that a crime occurred. For instance, it isn’t enough that a person confessed to killing another person.

It may also be necessary to establish motive, find the murder weapon and find the body of the allegedly deceased person. From there, it may also need to be established that the defendant intended to kill the victim or understood that what he or she did was wrong.

Is the Defendant Mentally Fit to Stand Trial?

A defendant must be declared mentally competent to stand trial if a prosecutor wishes to proceed with a criminal case. If that person is not deemed to be mentally fit for trial, it is possible that he or she will be sent to a mental facility to receive treatment. Once he or she has been rehabilitated, that person may be released back into the community without serving any additional jail time.

What Type of Crime Was Committed?

There are some crimes that may not be worth trying in the eyes of a prosecutor. For instance, someone caught with small amounts of marijuana may not be seen as a true menace to society. In a case scenario, the defendant agrees to a plea and pays a small fine. In a worst case scenario, the defendant decides to go to trial, which wastes both time and money that could be spent prosecuting a more dangerous criminal. Therefore, it may just be easier to issue a citation that can be paid through the mail or just drop the case altogether.

Would a Jury Convict the Defendant?

Prosecutors are always wary of not being able to win a case. Therefore, if they don’t think that they can get a plea or a conviction at trial, they may be less likely to take the case. This may be true even if there is enough evidence to charge an individual or a dangerous crime was committed. In America, if a person is acquitted for a particular crime, he or she cannot be brought back to trial for that same crime. Therefore, it may be better to wait until the odds are better of a conviction before filing charges in a case.

Are Witnesses Willing to Testify in Court?

One of the most effective ways to prove that someone committed a crime is to get the testimony of those who saw it happen. However, if a witness is not willing to testify in court, it is like he or she never saw it happen in the eyes of the law. While it may be possible to charge a defendant with witness intimidation, that may be difficult to prove as well. Therefore, it may not be worth pursuing a case if no one is willing to tell a jury what they know about it.

Was a Law Broken?

It is possible that a federal law and a state law conflict. Therefore, a prosecutor would have to decide whether to charge a person with a federal crime even if an action is legal in the state where it took place. While federal law always trumps state law, it doesn’t mean that a prosecutor has to take or try a case.

There are many issues that a prosecutor must consider when it comes to whether or not to file charges against an individual. If you have been charged with a crime, it may be in your interest to talk with an attorney right away. Doing so may preserve your rights and increase the odds of getting a favorable outcome in your case.

How Federal Criminal Cases Start in New York

A federal criminal proceeding in is initiated by a complaint or filing of indictment. A federal complaint is an accusation that charges the accused with commission of a crime based on probable cause. The complaint will also state the essential facts constituting the offense charged. It must mention specific facts that constitute the offense. Often, the complaint serves as the application for the arrest warrant. The defendant still must be indicted to be tried.

The complaint must be sworn before a federal magistrate judge. If the government bases a sworn, signed complaint to arrest a defendant on inaccurate information and the arresting federal officer uses this misleading complaint in his subsequent grand jury testimony, leading to the defendant?s indictment, the indictment should be dismissed.

The magistrate judge must investigate whether a complaint alleges probable cause for the commission of an offense, that is whether the defendant has committed the crime he is accused of.

Arrest Warrants

The Fourth Amendment forbids unreasonable searches and seizures, and requires probable cause for an arrest or for a search of a suspect’s real or personal property. The Fourth Amendment further provides that no warrant shall issue but upon probable cause. This requires a neutral and detached judicial officer to determine the existence of probable cause. When seeking a warrant, an officer must present sufficient facts to allow the judicial officer to weigh the evidence in a non-technical, common sense and realistic manner, and to make an independent judgment as to the existence of probable cause.

Arrest warrants must be very specific. Under Federal Rules, this means that the warrant must contain the defendant’s name or, if it is unknown, a name or description by which the defendant can be identified with reasonable certainty. If an arrest warrant is issued for a specific, named person, the law enforcement may not use it to arrest another person, even if the person arrested was actually the intended subject of the warrant.

Federal Rules require the following for a valid arrest warrant:

  • The warrant must describe the offense charged in the complaint;
  • The warrant must command that the defendant be arrested and brought without unnecessary delay before a magistrate judge or, if none is reasonably available, before a state or local judicial officer; and
  • The warrant must be signed by a judge.

In some situations, state police may arrest a person on a state warrant for a federal offense. If no federal agents participated in obtaining the state warrant or in the actual arrest, it is not a federal arrest that must conform to the federal rules. Only a U.S. marshal or ”other authorized officer” may execute a federal arrest warrant. That includes:

  • Any federal judge or magistrate judge;
  • Any state judicial officer of a state where the offender may be found;
  • The mayor of any city in a state where the offender may be found;
  • The officers, inspectors, and agents of the FBI;
  • Special agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives;
  • The officers, inspectors, and agents of the Secret Service;
  • Postal Inspectors;
  • Law enforcement officers of the Environmental Protection Agency.

A warrant may be executed throughout the United States, wherever the defendant is, regardless of where the offense occurred.

To arrest a suspect at home, a valid arrest warrant is usually required, unless there are some exigent circumstances that justifying a warrantless arrest in home. Exigent circumstances exist when there is a need for arrest and no time to obtain a warrant, for example, where the officers have a reasonable belief that there is a threat to live or that a suspect will escape or destroy evidence. Also, the warrantless arrest of a suspect in his or her home is justified when the arrest is made as part of a ”hot pursuit” of the suspect.

An arrest warrant does not allow entry into a third party’s home in which the subject of the warrant is merely visiting. An arrest warrant only allows the agents to enter a home in which the suspect lives when there is reason to believe the suspect is at home and that means only the suspect’s home, not as it does not provide sufficient protection for a third party’s right to privacy in his or her own home. However, only the third-party home owner has standing to challenge the warrantless search of the home. This right is personal to the home owner and may not be asserted by the person named in the warrant and arrested in another’s home.

The warrantless arrest of a felony suspect in a public place is a completely different story. When the arrest is based on probable cause, it does not violate the Fourth Amendment.

A violation of the Fourth Amendment will result in suppression of the evidence gained from the illegal search or seizure but will not stop the government from pursuing the case. It will also not invalidate subsequent conviction.

In most cases, under the exclusionary rule, any evidence that is either the direct or indirect result of illegal government conduct must be suppressed. However, these ”fruits of the poisonous tree” will be admitted if the prosecutor establishes that:

(1) the evidence was obtained from a source independent of the primary illegality

(2) the evidence inevitably would have been discovered in the course of the investigation

(3) the connection between the challenged evidence and the illegal conduct is so attenuated that it dissipates the taint of the illegal action

There are some exceptions to the exclusionary rules, such as where the evidence was obtained from an independent source, or where discovery of the evidence was inevitable, or where there was an attenuated connection between evidence and illegal conduct.

 

Initial Appearance After Arrest For Federal Crimes In New York 

In all cases where an arrest is made on federal criminal charges in NYC, the arrested person must be taken ”without unnecessary delay” for an initial appearance which is held before a federal magistrate judge. If a defendant is arrested without a warrant, the government must promptly file a complaint showing probable cause.

The requirement that an individual be produced before a magistrate judge within a reasonable time only applies to cases where the person is the federal custody. However, if the local state officials hold the arrested person, the federal government is not obligated to justify a delay in arraignment. This can be challenged if the defendant can show that the delay was caused by a special agreement between local police and federal authorities to delay federal arraignment in order to allow more time for a federal interrogation.

If there was illegal state-federal collusion to such a degree that custody was, in substance, ”federal,” then the arrestee is deemed to be in constructive federal custody when held by state officers under state charges, and any pre-arraignment delay will trigger rights under federal Rule 5(a).

Where a person is arrested under a warrant charging unlawful flight to avoid prosecution, the arresting federal agent does not need to bring the arrestee before a magistrate judge if there is no intent to actually prosecute the arrestee under that charge.

In some circumstances, confessions taken from those arrested on federal charges during or following ”unnecessary delay” in presenting them before a federal magistrate judge will be dismissed from evidence.

At the initial appearance the judge informs the accused of the charges, apprises him of his Miranda rights, advises of the right to have counsel appointed, and sets the terms of bail.

Although no constitutional right to counsel attaches at the initial appearance, every defendant unable to retain counsel is afforded counsel ”at every stage of the proceeding from initial appearance through appeal, unless the defendant waives this right.’

If the defendant is charged with a misdemeanor only, the judge must inform the defendant of the charge, the minimum and maximum penalties, the right to retain counsel or request an appointment of counsel, the right not to speak, and other procedural rights such as the right to trial before the court unless the charge is a petty offense or the defendant consents to trial before a magistrate judge.

Where the defendant is charged with a felony, the judge must inform the defendant of the following:

  • the complaint against the defendant and any affidavits filed with it;
  • the defendant’s right to retain counsel or to request that counsel be appointed if the defendant cannot obtain counsel, and the right to consult with counsel;
  • the circumstances, if any, under which the defendant may secure pretrial release;
  • any right to a preliminary hearing; and
  • the defendant’s right not to make a statement, and that any statement made may be used against the defendant.

The magistrate judge must allow the defendant a reasonable opportunity to consult with counsel. The judge will determine whether to release the defendant or keep him in custody.

A person charged with a felony, or with a misdemeanor other than a petty offense, is entitled to a preliminary hearing at which he must be formally charged by a magistrate judge. The preliminary hearing must be held within a reasonable time, but generally no later than 10 days after the initial appearance if the defendant is in custody, or 20 days after the initial appearance if the defendant is not in custody.

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Spodek Law Group
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