Challenging Appeal Waivers

As we have written about elsewhere, federal sentencing can be complicated.  Federal judges must correctly calculate the sentencing guidelines and properly weigh the sentencing factors set forth by congress.  As with any complicated area of the law, judges sometimes make mistakes, which is what appeals or for.

So why are there so few sentencing appeals in the federal system?

How the government avoids sentencing appeals

Unfortunately, most United States Attorneys offices have a policy of systematically attempting to deprive criminal defendants of their right to appeal.  How do they do this?  By refusing to agree to any plea bargains which do not contain a waiver of the defendant’s right to appeal.

So, because so many federal criminal cases result in a plea bargain of some kind, many defendants are forced to give up their valuable appellate rights.  Under an appeal waiver, the sentencing judge could calculate the guidelines incorrectly, or neglect important sentencing factors (such as the defendant’s personal history) and the Court of Appeals will be powerless to help.

Appeal waivers are not always enforceable!

Are appeal waivers impossible to overcome?  Usually – but not always.  In some cases, the Courts of Appeal have refused to enforce the waivers.  For example, what if the district judge did not ensure that the defendant understood the significance of the waiver at the change of plea hearing?  The waiver may be unenforceable.  In addition, the appellate courts have found that some errors are so fundamental that a defendant cannot waive them such as prosecutorial misconduct or ineffective assistance of defense counsel.

If you have been on the receiving end of legal errors in a federal criminal sentencing, consult a federal criminal defense attorney immediately even if you entered a plea agreement with an appeal waiver.  They can help you figure out whether you might be able to appeal the sentencing errors despite the waiver.


DC Court of Appeals Holds that Non-Citizens Have a Right to a Jury Trial for Offenses Resulting in Deportation

Ordinarily, there is no right to a jury trial in DC Superior Court for charges carrying less than six months.  This all but abolishes misdemeanor jury trials because most misdemeanors in the DC Code carry 180 days, which is just shy of six months.

But what about non-citizens who can be banished from the country forever as a result of the conviction?  The Court in Bado v. United States decided this consequence makes those offenses sufficiently serious to require a jury trial.

The panel hearing the case was deeply divided – a three judge panel somehow produced a decision with four opinions.  Judge Thompson wrote the opinion for the court, and and a separate opinion concurring with herself.  Judge Ruiz’s concurrence discusses some finer points of deportation law, and responds to Judge Fisher’s dissent which opens as follows

According to the majority, a citizen charged with misdemeanor sexual abuse of a child does not have a right to a jury trial, but a noncitizen charged with the same offense does.

Ever since the Supreme Court’s holding in Padilla that defendants have a right to effective assistance of counsel in considering immigration consequences of their criminal convictions, defense lawyers everywhere have had to start doing a little immigration on the side.  Now, at least in Superior Court, the defense bar will have to get even more up to speed on the law of deportation.

Federal Drug Trafficking

Drug crimes are prosecuted by both state and federal authorities. While in theory any drug possession or distribution offense can be prosecuted at the federal level, in practice, federal prosecutors will go after big cases involving large quantities of drugs or a large group of drug dealers, while leaving state authorities to pursue smaller — often misdemeanor — offenses involving individual drug users or dealers. Sometimes, state authorities may even refer large cases to federal prosecutors for prosecution.

How Federal Drug Prosecutions Work

Federal drug offenses are criminalized under 21 U.S.C. § 841 et seq. These provisions set forth the prohibited acts and penalties based on type of drug, quantity, and whether death or serious bodily injury resulted from the offense. 21 U.S.C. § 846 is the attempt or conspiracy section. In practice, federal prosecutors will often bring drug charges as a conspiracy under § 846. There are several strategic reasons for this, but the most important one is that by charging a drug offense as a conspiracy, the defendant becomes responsible for all reasonably foreseeable acts of co-conspirators. Thus, for example, a street-level dealer who sold a small quantity of drugs and never touched a firearm can still be held criminally responsible for much larger quantities of drugs sold by co-conspirators and in certain cases can be responsible for co-conspirators’ use of firearms.

If you have been charged with a drug offense, it is important to consult an experienced attorney to determine what additional charges the government may plan to bring and to discuss what possible defenses you may have. Federal drug laws are draconian and the prosecutor has many options to increase the stakes, as in the following examples:

Proceeding To Establish Prior Convictions

21 U.S.C. § 841 provides for enhanced penalties when the defendant has previously been convicted of felony drug convictions in either federal or state court. The enhanced penalties can range from a doubling of the mandatory minimum sentence to life imprisonment.

It is important to note that the enhanced penalties are applied only if a federal prosecutor chooses to file what is known as an “851 information,” named after the section, 21 U.S.C. § 851, that requires a federal prosecutor to file an “information” setting forth the prior convictions to support the enhanced penalties.

In practice, the § 851 information is an exceptionally powerful tool for prosecutors to secure guilty pleas from defendants when the evidence against them might otherwise be marginal. By threatening a potential doubling of the mandatory minimum sentence, such as from five to 10 years, or even life imprisonment, the prosecutor can increase a defendant’s potential exposure by going to trial and bring otherwise unwilling defendants to the bargaining table. While some courts have criticized this practice, judges are generally forbidden from participating in plea negotiations and cannot do anything to prevent it.

Firearms Charges

When drug cases go to trial, federal prosecutors frequently bring gun charges under 18 U.S.C. § 924(c).

If convicted under this section, a defendant faces additional sentences of between five and 10 years’ imprisonment. The sentences under § 924(c) are required to be consecutive to any other penalties imposed for the underlying drug offense. Thus, for example, a defendant who is convicted of conspiracy to possess 100 grams or more of heroin and has one prior felony conviction faces a mandatory minimum sentence of 10 years on the drug offense. If the prosecutor also brings a § 924(c) charge alleging that the defendant possessed a firearm in connection with the offense, he faces a total mandatory minimum sentence of 15 years.

Even if no additional charges for firearms are brought, a defendant can still face a higher sentencing guidelines range as a result of the presence of firearms. While the sentencing guidelines range is now advisory, courts are still required to consider them. Many judges will frequently refer to the guidelines range when sentencing a defendant. If a defendant (or co-conspirator) is found to have possessed a firearm in connection with the offense, his guidelines range will generally increase by approximately 25 percent.

Representing Defendants In Federal Drug Prosecutions

At Burnham & Gorokhov, we have extensive experience representing individuals charged with federal drug offenses, ranging from possession charges to serious charges of distribution and conspiracy. In many cases, we have been successful in securing below-guidelines sentences for our clients. If you or someone you know has been charged with a drug offense, it is important to have an experienced attorney who can advise you accordingly.

To schedule a free phone consultation, please call our office at 202-386-6920. You can also complete the online contact form.

Targets, Subjects and Witnesses in Federal Criminal Investigations

Federal prosecutors and agents conducting criminal investigations often talk in terms of “targets”, “subjects”, and “witnesses.”  So what do these terms mean and why are they important?

In laymans’ terms, a target is a person who the government has decided to prosecute if they can whereas a witness is a person the government believes is innocent but may have relevant information.  A subject is somewhere in between – the government has not decided whether they are guilty of a crime or not.

A simple example will illustrate the point.  Let’s image a mortgage fraud investigation where the government learns a borrower falsified their income to get a loan, and the loan officer did their due diligence but did not discover the fraud.  The government will classify the borrower as a target and the loan officer as a witness.  But what about the other parties involved in the loan?  Say, the realtor or the title insurer?  What did they know?  They government may not be sure at first and will therefore classify other parties as subjects until it figures out whether they were parties to the fraud.

The important thing to understand about these categories is that they have no real legal effect.  If a government agent seeks to interview you and says you are “just a witness” there is nothing stopping that agent from taking your statement and using it to prosecute you later.  No judge will dismiss your charges and your statement is probably admissible against you.  So it is not a good idea to rely too heavily on these classifications.

Still, if you are involved in a federal criminal investigation, it is helpful to know how the government has classified you, especially at the beginning.  It can be a useful guide, so long as you take it with a grain of salt.

If you believe you are implicated in an investigation, a federal criminal defense attorney can inquire about your status.  If you are a target or subject, your lawyer may be able to persuade the government to reclassify you, depending on the facts of your case.  Even if you are a witness, seek counsel immediately to ensure you remain a witness.

Indictment against FIFA officials

A federal grand jury in the Eastern District of New York has returned a 47-count indictment against 14 individuals, including high-ranking officials of FIFA.  The charges include racketeering, wire fraud, and money laundering conspiracies.

From the New York Times:

“The Department of Justice indictment names 14 people on charges including racketeering, wire fraud and money laundering conspiracy. In addition to senior soccer officials, the indictment also named sports-marketing executives from the United States and South America who are accused of paying more than $150 million in bribes and kickbacks in exchange for media deals associated with major soccer tournaments.”

Read the article here.

Read the DOJ press release here.

Expunging or Sealing Your Arrest Record in Washington, DC

“The law says that a discharge from the courts leaves one’s character clean.” – Socrates

Unfortunately, this piece of ancient wisdom does not always hold true today.  If you have been arrested or charged with an offense that you were not convicted of, many people will assume you were guilty, including potential employers.

Luckily for those charged or arrested in Washington, DC, the district has a relatively generous law for expunging or “sealing” cases that did not result in conviction.  The governing statute, which you can find online, is D.C. Code 16-802.

The easiest way to seal your record is on “grounds of actual innocence.”  To seal your record this way, you must convince the court that you were actually innocent of the crime charged.  For example, if you were found not guilty at trial, the transcript of proceedings may be sufficient to show your actual innocence.  If the case never went to trial, an sworn affidavits of testimony may also suffice.

If you are not able to demonstrate actual innocence, you may still be able to seal your record if the offense charged was a misdemeanor (rather than a felony).  However, you will have to wait either two or three years to file your motion to seal, depending on the offense charged.

Please take note – sealing a criminal record in Superior Court is time consuming.  It can take many months to get your motion through, even if your case is solid.  So, if you think you may be applying for a new job at some point, do not wait until a few weeks before to seal your record.

This post should provide a good general overview of the district’s law on sealing arrest records, but there are details that come up in certain cases that could not be covered here.  If you would like to discuss sealing your record with an attorney, please contact us.

What Kinds of Criminal Cases are Heard in Federal Court?

Our country’s federal district courts are where criminal prosecutions by the United States government, via the Department of Justice or one of the many United States Attorneys’ Offices, are brought and tried.  Prosecutions in the federal courts involve alleged violations of the federal criminal laws.

Although there are thousands of criminal provisions in the United States code, the most common federal offenses involve immigration, fraud, or drug trafficking.  Somewhat less common charges include Bribery, Espionage, Hobbs Act and Racketeering.  Traditional criminal offenses such as murder, theft or burglary are usually charged in state courts.

Most federal criminal cases begin as investigations by a federal agency.  The FBI is the most well-known but almost every federal agency conducts criminal investigations, including those not generally thought of as “law enforcement” such as the EPA or the State Department.  In some cases, the federal government will take over an investigation begun by the local police, as often happens in drug cases.

Are criminal charges from “the Feds” more serious than state criminal charges?  For the most part yes, although there are certainly exceptions.  Federal cases usually involve serious allegations, and carry stiff penalties.

For more information on federal criminal cases, you can visit our website or contact us for a free consultation.