The Nuts and Bolts of A Federal
Criminal Prosecution
Frederick G. Herold
Dechert LLP
9/13/05
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“A Personal History”
• 1987-1991 – Ancient History?
• Remarkably Few Significant Changes
• Longstanding System
• Shift of Resources
• Corruption – Constant
• Drugs
• Financial Crimes
• Terrorism – 9/11
• Sentencing Guidelines – None, Strict,
Advisory
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Overview
• When Do the “Feds” Get Involved?
• How Do Investigations Start?
• Investigative Tools
• Grand Jury Process/Indictment
• Pre-Trial Proceedings
• Guilty Pleas
• Trial
• Sentencing
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Federal (vs. State) Law
Enforcement
• U.S. Department of Justice
• U.S. Attorneys Offices
• Federal Agents – FBI, DEA, IRS,
Immigration, Inspectors General, Postal
Inspectors
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Federal (vs. State) Law
Enforcement
• White Collar: Corruption, Fraud (mail and
wire), Tax
• Narcotics (bigger cases)
• Terrorism (more recently)
• Bank Robbery, Arson, Firearms Offenses
• Not murder, rape, theft offenses, street crimes
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Investigations – Key Players
• Federal Agents
• Assistant U.S. Attorney
• Grand Jury
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Start of Federal Investigations
• Tips (i.e., Scorned Mistresses (Tayoun))
• Bold Citizens (Beloff)
• Disgruntled Employees
(“Whistleblowers”)
• Outgrowth of Other Cases
(Roofers/Judges)
• Audits
• Events (Terrorist Attack, Financial
Collapse, Bank Robbery)
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Investigative Tools – Overt and
Covert
• Overt Tools
• Grand Jury (and other) Subpoenas
• Bank Records – Follow the Money
• Phone Records
• Documents and Data
• Witnesses
• Compulsion and Immunity
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Investigative Tools
• Searches
• Warrantless Searches
• Searches with Warrant
• Probable Cause and Neutral Magistrate
Requirements
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Investigative Tools
• Agent Interviews/Interrogations
• Witnesses
• Targets
• Agent Techniques (e.g., lie detectors,
interrogations, etc.)
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THE FBI VISIT
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Investigative Tools
• Agent Interviews/Interrogations
• Witnesses
• Targets
• Agent Techniques (e.g., lie detectors,
interrogations, etc.)
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Investigative Tools
• Covert Tools
• Undercover Operations
• Informants
• Culpable Witnesses
• Deals (immunity/plea/sentencing departure)
• Victims
• Federal Agents
• Beloff Case
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Investigative Tools
• Phone Recordings
• Body Wires/Video
• Jimmy Tayoun Case
• Title III Wiretaps
• Roofers Case
• Philadelphia Mayor’s Office Case
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Investigative Tools
• Surveillance/Photos/Video Tapes
• Mail Covers
• Phone number tracking
• Agent Tom Aloan
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Investigative Tools
• Forensic Evidence
• Fingerprints, DNA, Hair, Fibers, Blood
• Handwriting Analysis
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Investigative Tools
• Target/Subject Letters
• Attorney proffers
• Target/Subject proffers (“Queen for a Day”)
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The Grand Jury Process
• Grand Jury Participates in Investigation
• Issues Formal Charging Document: The
Indictment
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Federal Grand Juries
• 15 -20 Citizens – “Classroom”
• Meet once/week for 18 months
• Present: Prosecutor, Grand Jury
(Foreperson up front), Court Reporter,
Witness
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Federal Grand Juries, Continued
• No Judge, No Defense Attorneys Inside
• Strict Secrecy (except witnesses)
• Prosecutor Controls
• Very Powerful Tool
• Grand Jury Subpoenas – Documents and
Witnesses
• “Lock in” Witnesses
• Hearsay/Agent Summaries OK
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Federal Grand Jury – Evidence and
Indictment
• Prosecutor Controls All Evidence Presented
• Prosecutor Explains Law
• Grand Jury Indictment is Formal Charging
Document for Federal Felonies
(absent waiver)
• Prosecutor Writes Indictment, Grand Jury
Approves
• Results
• Constraints
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Federal Grand Jury – Indictment,
Continued
• Approval of Indictment By Magistrate
(under seal)
• Arrest (Can also be pre-indictment)
• Press Release by U. S. Attorney
(“Guliani Specials”)
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Pre-Trial Proceedings
• Bail/Probable Cause Hearing
• Discovery: Much More Limited Than in
Civil Litigation
• No Depositions, or Even Pre-Trial Witness
Disclosures – Jencks Act Disclosures Only
• Prosecutorial Good Faith Required –
Brady/Giglio
• Limited Discovery From Defendant
Post-Indictment
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Pre-Trial Motions
• Defects in Indictment/Charges/Grand Jury
Proceedings
• Severance
• Suppression
• Confessions
• Searches
• Evidentiary Motions
• Tapes/Transcripts
• Exclusions
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Guilty Pleas
• Charging/Cooperation/Sentencing Deals
• Little Charging Discretion
• Sentencing Guideline Stipulations
• Cooperation “Departures”
• Significant Impact on Building Multi-Defendant
Cases
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Guilty Pleas
• Guilty Plea Procedures
• Written Plea Agreement
• “Rule 11” Hearing Before Judge
• Court must be satisfied that defendant
understands charges, wants to plead guilty, what
he’s giving up.
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Criminal Trial
• Jury Selection (“Petite Jury” of 12)
• Questionnaires
• Challenges for Cause
• Peremptory Challenges (Batson Issues)
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Criminal Trial, Continued
• Government Opening
• Defense Opening
• Government Case-In-Chief
• Rule 29 Motion for Acquittal
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Criminal Trial, Continued
• Defense Case-In-Chief
• Right Not to Testify
• Impeachment of Defendant if He Testifies
• Cross Examination – “A Few Good Men”
• Government Rebuttal Case
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Criminal Trial, Continued
• Closing Arguments
• Government goes first
• Defense Closing
• Government Rebuttal
• Jury Instructions by Court
• Deliberations (potential questions)
• Verdict
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Sentencing
• Pre 11/87 – Judicial Discretion up to Statutory
Maximums
• 11/87 – Mid 2004 – Strict Application of Detailed
Federal Sentencing Guidelines, Increase in
Mandatory Minimum Sentences
• Affected All Aspects of Criminal Prosecutions
• 2005 – Parts of Federal Sentencing Guidelines
are “Advisory” and Sentences Must be
“Reasonable”
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Sentencing
• Pre-Sentence Investigation by Probation
Department
• Formal Prosecutorial/Defense
Presentations to Court
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Federal Sentencing Guidelines
• Key Factors in Sentence Under Guidelines
• Prior Record
• Type of Case (narcotics, fraud, corruption)
• “Size” of Case (amount of drugs/amount of money)
• Other Aggravating/Mitigating factors
• Often determined by sentencing judge
• “Acceptance of Responsibility”
• Is a “Departure” Warranted
• “Cooperation with Government” Is Most Significant Ground
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Sentencing
• Court Issues Sentence
• Appellate Review
• Formerly Difficult to Overturn a Guidelines
Sentence
• New “Reasonableness” Standard for Certain
Sentences
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Appellate Process
• Government Cannot Appeal an Acquittal
by a Judge or Jury
• Defendant Has Right to Appeal to U.S.
Court of Appeal
(Federal Intermediate Appellate Court)
• Defendant Has Subsequent Discretionary
Appeal to The U.S. Supreme Court
• Habeas Corpus Process
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