While there are many similarities between criminal cases in federal and state court (such as the fact that the United States Constitution governs both types of cases), there are also important differences between federal and state criminal cases.  Failure to account for these differences is fatal to the defense of a federal charge.

The unique features of federal criminal cases include:

The application of federal law

Federal cases are governed by a specific set of statutes, rules, and guidelines, including:

• The United States Code. There are over 4,000 federal crimes in the United States.  Because the federal system is a system is a common law system, based on legal precedent, there are scores of cases interpreting the federal criminal statutes.  In order evaluate the merits of federal charges that have been brought, to determine whether there are any defenses to these charges, and to mount and effective defense, your attorney must be intimately familiar with the federal criminal code and how the various charging statutes operate as interpreted by legal precedent.

• The Federal Rules of Criminal Procedure, the Federal Rules of Evidence, and the circuit-specific federal case law interpreting those rules.  The Federal Rules of Criminal Procedure govern virtually all aspects of federal criminal prosecutions.  This includes, for example, the grand jury process, the initial appearance and arraignment, the process for criminal discovery and subpoenas, and legal standards and procedures for filing motions to dismiss, and federal sentencing procedure.  Many of these rules set forth specific procedures and timelines to be followed.  An attorney representing a federal criminal defendant must have intimate knowledge of these rules and ensure that they are followed.  A failure to do so can lead to disastrous results for the client.The Federal Rules of Evidence govern the admissibility of evidence in federal trials and certain other proceedings.  In order to effectively fight charges brought by federal prosecutors, and to put before a jury the evidence showing a person’s innocence, a defense attorney must know and effectively use the Federal Rules of Evidence.  Like the United States Code, there is extensive case law interpreting and explaining each Rule of Evidence.  Often, issues regarding the admissibility of evidence are sufficiently important and complex that they should be argued through pre-trial motions, sometime with extensive briefing.  The effective, creative use of the Federal Rules of Evidence often will make the difference between acquittal and conviction at trial.  A victory by the defense on an important evidentiary issue can also be the key to opening the door to a more favorable outcome through negotiations with the prosecution.

• The United States Sentencing Guidelines. The guidelines have been advisory ever since United States v. Booker, 543 U.S. 220 (2005), but they remain enormously influential.  Like the United States Code and the federal rules, there is extensive case law interpreting how the guidelines work.  Depending on the facts and circumstances of the charged offense, the guidelines can present legal issues that can have a significant impact on the ultimate advisory guidelines range.  Effective representation in federal sentencing cases requires an attorney with significant experience and knowledge of the sentencing guidelines.

The decision to investigate or charge

Prosecutions by state authorities are largely driven by crimes reported in their particular community. Federal prosecutors, however, can pick and choose which cases to bring from all over the world, and the connection with their district need only be slight to give them jurisdiction. Understanding the motivations that lead federal agents and prosecutors to bring a particular case is essential for effective defense.

Because federal prosecutors can pick and choose the cases they bring, it is important to understand that once they have decided to bring a case they will likely put significant resources into that case.  What does this mean?  It means that the federal agents and agencies investigating a case will likely devote more time, energy, and manpower to a federal case than a comparable state case.  As we explain elsewhere, federal agents have a wide variety of investigative techniques at their disposal in investigating cases, and they are more likely to use some of these tools in federal cases.  Also, the prosecutors themselves will generally have more time and resources to prepare case than their state counterparts.

The presence of voluminous discovery

“Discovery” is information seized by the government that is provided to the defense.  This information may contain evidence that the government intends to use against the defendant, information that is helpful to the defense and can be used to show innocence or seek a lesser sentence, or it may be irrelevant to the case.

Because they are generally investigated thoroughly, and because of the many different types of investigative tools that federal agents have available to them, federal cases often involve extensive discovery.  This can mean many hours of recorded conversations from a wiretap, or, especially in the case of white collar offenses, thousands or even millions of computer files and/or enormous amounts of paper documents.

Given this aspect of federal cases, a defense lawyer must have a reliable and effective system in place for reviewing discovery.   An effective defense lawyer must also be familiar with the Federal Rules of Criminal Procedure and the case law governing discovery, in order to secure every advantage for the client in terms of obtaining favorable evidence.

Effective investigation and challenging adverse testimony. 

During a federal criminal investigation, agents and prosecutors will typically conduct interviews of witnesses.  Often, these witnesses will have given multiple statements, which are (or should be) documented by agents in reports that they prepare, and these witnesses are often the key to the government’s case.

Because of the circumstances under which these statements are given by witnesses, and their potential importance to the case, it is important for a defense lawyer to have an effective strategy for dealing with such witnesses.  This strategy may include having the witnesses interviewed by an independent investigator.  An effective attorney must also have a strategy for impeaching or attacking the credibility of witnesses who are damaging to the defense.  This aspect of criminal defense requires a thorough knowledge of investigative techniques and the Federal Rules of Evidence.  It requires careful planning, based on a lawyers experience and personal judgment.

Effective use of expert consultants and witnesses. 

Federal prosecutions often involve specialized industries or subject matter that requires specialized knowledge.  For example, a federal prosecution may involve banking, securities, medicine or medical billing, etc.  In these situations, prosecutors sometime rely on the help of subject matter experts in building their case and presenting it at trial.  Similarly, a means of evidence gathering may involve a specialized skill or knowledge.  For example, in a fraud case involving the use of a computer, expert knowledge may be necessary to determine how the contents of the computer were seized, who they were created or accessed by, etc.

An effective federal criminal defense attorney will know when and how to work with subject matter experts to build a defense case.   If necessary, the defense attorney will present expert testimony at trial or another proceedings.  The presentation of expert testimony on behalf of a defendant, and challenging experts presented by the government, is an involved and sometimes contentious process.  Here again, the defense lawyer must be experienced with the Federal Rules of Criminal Procedure, the Federal Rules of Evidence, and the case law governing expert testimony in order to effectively represent a client in federal court.

The firm of Burnham & Gorokhov, PLLC regularly handles federal investigations and prosecutions in the Eastern District of Virginia, Western District of Virginia, District of Columbia, District of Maryland, Southern District of New York, Eastern District of North Carolina, Western District of Michigan, and the District of Kansas.

We have handled federal criminal appeals in the 4th, 10th, and 11th Circuit Courts of Appeal.