fred

							The Nuts and Bolts of A Federal
     Criminal Prosecution




 Frederick G. Herold
 Dechert LLP
 9/13/05

                                  1
           “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

                                            2
3
                Overview
•   When Do the “Feds” Get Involved?
•   How Do Investigations Start?
•   Investigative Tools
•   Grand Jury Process/Indictment
•   Pre-Trial Proceedings
•   Guilty Pleas
•   Trial
•   Sentencing

                                       4
       Federal (vs. State) Law
           Enforcement
• U.S. Department of Justice
• U.S. Attorneys Offices
• Federal Agents – FBI, DEA, IRS,
  Immigration, Inspectors General, Postal
  Inspectors




                                            5
        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




                                                      6
  Investigations – Key Players
• Federal Agents

• Assistant U.S. Attorney

• Grand Jury




                                 7
 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)
                                             8
  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




                                          9
         Investigative Tools
• Searches
  • Warrantless Searches
  • Searches with Warrant
    • Probable Cause and Neutral Magistrate
      Requirements




                                              10
           Investigative Tools
• Agent Interviews/Interrogations
     • Witnesses
     • Targets
     • Agent Techniques (e.g., lie detectors,
       interrogations, etc.)




                                                11
THE FBI VISIT




                12
           Investigative Tools
• Agent Interviews/Interrogations
     • Witnesses
     • Targets
     • Agent Techniques (e.g., lie detectors,
       interrogations, etc.)




                                                13
         Investigative Tools
• Covert Tools
  • Undercover Operations
    • Informants
    • Culpable Witnesses
       • Deals (immunity/plea/sentencing departure)
    • Victims
    • Federal Agents
    • Beloff Case



                                                      14
          Investigative Tools
• Phone Recordings

• Body Wires/Video
  • Jimmy Tayoun Case


• Title III Wiretaps
  • Roofers Case
  • Philadelphia Mayor’s Office Case

                                       15
         Investigative Tools

•   Surveillance/Photos/Video Tapes
•   Mail Covers
•   Phone number tracking
•   Agent Tom Aloan




                                      16
         Investigative Tools
• Forensic Evidence
  • Fingerprints, DNA, Hair, Fibers, Blood
  • Handwriting Analysis




                                             17
          Investigative Tools
• Target/Subject Letters
     • Attorney proffers
     • Target/Subject proffers (“Queen for a Day”)




                                                     18
     The Grand Jury Process
• Grand Jury Participates in Investigation
• Issues Formal Charging Document: The
  Indictment




                                             19
       Federal Grand Juries
• 15 -20 Citizens – “Classroom”
• Meet once/week for 18 months

• Present: Prosecutor, Grand Jury
  (Foreperson up front), Court Reporter,
  Witness



                                           20
 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

                                           21
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

                                               22
 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”)




                                         23
       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
                                                24
          Pre-Trial Motions
• Defects in Indictment/Charges/Grand Jury
  Proceedings
• Severance
• Suppression
  • Confessions
  • Searches
• Evidentiary Motions
  • Tapes/Transcripts
  • Exclusions
                                             25
                Guilty Pleas
• Charging/Cooperation/Sentencing Deals
  • Little Charging Discretion
  • Sentencing Guideline Stipulations
  • Cooperation “Departures”
    • Significant Impact on Building Multi-Defendant
      Cases




                                                       26
               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.




                                                         27
             Criminal Trial
• Jury Selection (“Petite Jury” of 12)
  • Questionnaires
  • Challenges for Cause
  • Peremptory Challenges (Batson Issues)




                                            28
        Criminal Trial, Continued
•   Government Opening
•   Defense Opening
•   Government Case-In-Chief
•   Rule 29 Motion for Acquittal




                                    29
      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




                                               30
      Criminal Trial, Continued
• Closing Arguments
  • Government goes first
  • Defense Closing
  • Government Rebuttal
• Jury Instructions by Court
• Deliberations (potential questions)
• Verdict


                                        31
                 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”

                                                      32
              Sentencing
• Pre-Sentence Investigation by Probation
  Department

• Formal Prosecutorial/Defense
  Presentations to Court




                                            33
 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



                                                                    34
               Sentencing
• Court Issues Sentence
• Appellate Review
  • Formerly Difficult to Overturn a Guidelines
    Sentence
  • New “Reasonableness” Standard for Certain
    Sentences




                                                  35
         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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