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The Nuts and Bolts of A Federal Criminal Prosecution

The Nuts and Bolts of A Federal Criminal Prosecution. Frederick G. Herold Dechert LLP 9/13/05. “A Personal History”. 1987-1991 – Ancient History? Remarkably Few Significant Changes Longstanding System Shift of Resources Corruption – Constant Drugs Financial Crimes Terrorism – 9/11

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The Nuts and Bolts of A Federal Criminal Prosecution

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  1. The Nuts and Bolts of A Federal Criminal Prosecution Frederick G. Herold Dechert LLP 9/13/05

  2. “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

  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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