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Federal Crime Charges

Pretrial Release in Federal Criminal Cases

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What is pretrial release?

Pretrial release means that while federal charges are pending, a defendant can remain out in the public rather than detained in jail or prison. Ultimately, a judge or magistrate must decide if a defendant will be permitted to be at home while the case is pending or if they will have to stay detained until the case is resolved. A court date is scheduled early in the case, and the government and defense either agree to release or there is a hearing whereat both sides produce witnesses and evidence bearing on the question of release pending trial. Normally, the call regarding pretrial release is made by a federal magistrate because the trial judge has not yet been assigned at this early stage.

Pretrial Release in Federal Criminal Cases

In most cases, an astute, federal criminal defense lawyer will point out that the Bail Reform Act of 1984 favors the granting of bond. However, there is a “rebuttable presumption” in favor of detention if the crime charged is a controlled substance offense punishable by 10 years or more or if it involves terrorism, firearms, and some other specified offenses. Although there is a presumption that detention should be ordered, if the court finds that there are conditions of bond that would both assure the court that the defendant will appear at future court hearings and will not be a danger, release should be granted. If the government opposes release, the court will have to conduct a detention hearing.

The judge or magistrate should consider four factors:

  1. The nature of the offense and whether violence or drugs are involved;
  2. The weight of the evidence against the defendant;
  3. The history and personal characteristics of the defendant; and
  4. What danger would be posed to the community if the defendant were released.

After these factors are analyzed, the judge or magistrate decides whether there is a condition or combination of conditions of release which will reasonably assure the safety of the public and assure the defendant’s appearance in court. When the rebuttable presumption arises, it is up to the defense attorney to overcome (rebut) the presumption. It takes decades of practice for a criminal defense attorney to become highly effective at persuading courts to release clients on bond in serious cases.

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The reasons why release is important

Time in jail

The first and foremost consideration that presents itself is the time the defendant will lose from his or her life by being in jail. This is a major concern in any case, and worthy of the most zealous and compelling effort by the defense attorney. Federal cases frequently take more than a year to come to resolution. Therefore, even if a defendant is eventually exonerated or found not guilty, he or she will already have spent many months in jail.

Proof of remorse and turning over a new leaf

The second reason being allowed to be free pending trial is so important is that by the time the defendant is sentenced, he or she will have had quite a long time to prove to the judge that they are worthy of some degree of leniency. If a defendant has been locked up, he or she has had no opportunity to prove they can be law-abiding citizens in the public community at large. All such defendants would have at sentencing would be statements about how sorry they are. This may or may not be believed by the judge, and such statements are often greeted with a degree of skepticism. If a defendant has been out, perhaps working at a job, engaging in therapy or drug treatment, raising children, doing charity work, or doing any other admirable things, and he has not committed any new offenses, the judge will know such statements of remorse are true. The defendant has proven he or she is deserving of favorable consideration at sentencing and an opportunity to be rehabilitated with little or no incarceration.

Convenience

Another reason being free pending trial is important is that it is far easier to meet with the defense attorney in order to discuss the evidence and strategize and prepare for trial. If a defendant is in jail, it is highly inconvenient for the attorney to have to travel to the jail, which entails bringing any evidence the attorney needs to go over with the client. The volume of paperwork, DVD’s, and physical evidence is normally quite substantial in federal cases. Additionally, federal defendants are randomly housed in one of many possible jails. These jails are invariably quite distant from the attorney’s office. The U.S. Marshal doesn’t care if the jail is close to the attorney’s office. Time spent at the jail is also limited by the visiting hours and travel time can result in higher attorney fees.

A Magistrate’s Decision to Detain a Defendant Can Be Appealed

Even if a magistrate orders the defendant be detained, a zealous and committed criminal defense attorney will know that is not the end of the story. If a magistrate orders detention, an appeal can be made to the district judge, and the defense will have another bite at the apple. The defense attorney may file a motion to revoke or amend the detention order. The detention hearing must be re-done from scratch before the district judge. The original decision by the magistrate is not supposed to carry any special weight with the judge.

Too often, “less than the best” attorneys believe it will be a waste of time to appeal to the district judge who gets the case. It is almost as if they are afraid to win. The best attorneys know that a case must be fought with full and optimistic vigor at every available stage, and doing so is never a waste of time.

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Federal Defense Attorneys that Are Not Afraid to Win

The dedicated, experienced and zealous defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have successfully represented thousands of clients on federal felony and misdemeanor charges in United States District Courts throughout Michigan. We have a well-earned reputation for providing the highest quality defense and aggressive representation, while showing empathy and care for each client. Call us today at (248) 263-6800 or complete a Request for Assistance Form and we will contact you promptly.


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we are not afraid to win!

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Federal Drug Charges Defense Attorneys

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Federal Criminal Defense Attorneys who have an unparalleled track record of successful representation in the United States District Courts in Michigan. We are not afraid to win!

Federal Drug Charges Defense Attorneys

Can Any Defense Attorney Handle a Federal Drug Case?

Yes and no. Any lawyer admitted to practice before the federal bar may represent a client on a federal drug case. Simply being represented is far different than being represented well. For the best results, persons facing federal drug charges need a top-rated, effective attorney who has had extensive experience in federal court and experience dealing with federal prosecutors, judges, and court procedure. Many attorneys who handle state drug cases are not familiar with federal procedures and this can result in terrible consequences for a client.

Federal Drug Prosecutors and Judges

Federal defense is a highly specialized practice and drug charges carry heavy penalties. And unlike the state court system, there is no parole in the federal system. The Assistant United States Attorneys who routinely handle drug prosecutions in the US District Court are highly trained, aggressive, and will do everything within their power to secure a conviction and stern sentence. The judges in federal court are generally conservative and used to handing out lengthy prison terms. Is there hope? Yes! The Defense Team with LEWIS & DICKSTEIN, P.L.L.C. has been effectively and aggressively defended clients in federal felony and misdemeanor drug cases for decades and they are ready, willing and able to help you or your loved one today.

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Types of Controlled Drugs

Federal law divides drugs into 5 “schedules,” depending upon the dangerousness and medical usefulness of the drugs. An attorney must be aware of the schedules and the penalty their use or manufacture or sale carries.

Schedule I

Schedule I drugs are those that the law has determined have no legitimate medical use, and which are highly dangerous and/or highly addictive. Virtually all of them are illegal to possess or use. Examples of such drugs are Heroin, Ecstasy, LSD, and Marijuana. It should be noted here that although many states have legalized the use of marijuana to some degree, federal law does not permit the use, possession, manufacture, or sale of marijuana. A medical marijuana card carries no weight in a federal court. Convictions for the sale or distribution of Schedule I controlled substances can result in long prison sentences.

Schedule II

Schedule II drugs are similarly dangerous and highly addictive, but they are still in use in the medical field. Examples of such drugs are Methamphetamine, Methadone, Dilaudid, Oxycodone, Morphine, and Codeine. A prescription is required for use of these drugs, or they are administered in person by a doctor or nurse. Prescriptions may not be refilled, and a doctor must prescribe these drugs to you one prescription at a time, due to the danger they pose. Like Schedule I cases, judges and prosecutors frequently seek to impose harsh penalties for cases involving Schedule II controlled substances.

Schedule III

Schedule III drugs are potentially habit-forming. Examples are Ketamine and Flunitrazepam (commonly referred to as the “date-rape” drugs), anabolic steroids, and Tylenol with Codeine. A prescription is required for use and possession of these drugs.

Schedule IV

Schedule IV drugs are drugs commonly prescribed as part of a mental health treatment program for things such as anxiety and depression, and include drugs such as Lorazepam, Diazepam, Halcion, and Xanax. A prescription is required for possession and use of these drugs.

Schedule V

Schedule V drugs are drugs considered relatively safe and have a low potential for dependence, such as cough medicine with low does of Codeine. A prescription is required for possession and use of these drugs. Although cases involving the sale or distribution of Schedule III, IV and V substances are less serious than Schedule I and II cases, the U.S. Attorney’s office in the Southeastern District of Michigan is notoriously tough on all controlled substance cases.

What Are the Penalties for the Sale or Distribution of Controlled “Scheduled” Drugs?

The penalties for drug convictions are very complex, and depend on the amounts and types of drugs involved. Suffice it to say that the penalties are harsh, even for first offenders. For instance, a first offense for possession with intent to sell or distribution of cocaine carries a penalty of 5-40 years in prison and a $2 million fine. If a death or serious injury is involved, the mandatory minimum is 20 years up to life, and a $4 million fine. The penalties rise rapidly when larger amounts are involved.

The penalties for drug offenses typically are more severe in the federal system, and as stated above, the is no parole. A state sentence is often less severe and prison terms end up being less. If you are looking for a federal drug defense attorney, you had better find a great one. Your life, for all practical purposes, depends on it. A federal defense attorney must know what the penalties are and be familiar with the federal prosecutor and judge who are on the case. It takes decades of experience for an attorney to achieve consistent and reliable results in federal court.

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Federal Drug Charges Involving Firearms

The most serious drug offenses are those involving or connected to firearms. Federal firearms laws provide severe penalties for firearms use by the violent offender or drug trafficker. For example, possession of firearms by convicted felons or drug users can provide punishments of up to ten years imprisonment. If such possession occurs after one is convicted of three violent felonies or serious drug trafficking offenses, the violator must serve a minimum of fifteen years in prison.

Whenever a firearm is allegedly used or carried during the course of a violent offense or drug trafficking crime, this is called a “924 violation” and a conviction will result in mandatory prison time. The use of a shotgun or assault weapon adds 10 years and if an automatic weapon, silencer or destructive device is used, 30 years imprisonment is added to the underlying charges.

It goes without saying that the right representation in these cases can make the difference between decades or years in prison. In some cases, an experienced, respected and supremely effective lawyer can get this charges reduced or dismissed.

How Can I Tell if an Attorney is Experienced with Federal Cases?

You can start by asking an attorney about his or her experience in federal court. There is no reason to be shy in a conversation with an attorney because you need to know that the attorney is trustworthy, zealous, and effective. You can also go to www.avvo.com to research the attorney and see if and how they have been rated.

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In times of unexpected legal trouble, too many people panic, and call an attorney they happen to know, such as a divorce lawyer, probate lawyer, or business lawyer, for example. This is a huge mistake. If you face a criminal drug case, especially in federal court, you absolutely must hire a top lawyer that exclusively handles criminal cases. Many lawyers occasionally handle criminal cases and also practice in other areas of the law. These lawyers are not doing you any favors. It’s this simple: you don’t hire a heart surgeon if you need brain surgery.

LEWIS & DICKSTEIN, P.L.L.C. – Federal Drug Case Defense Attorneys

The dedicated, experienced and zealous criminal defense attorneys at LEWIS & DICKSTEIN, P.L.L.C. have successfully represented numerous clients on felony and misdemeanor charges in federal court. We are well-known and well-respected by federal judges and prosecutors, and have a well-earned reputation for providing the highest quality defense and aggressive representation. Call us today at (248) 263-6800 or complete a Request for Assistance Form and we will contact you promptly.

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“We will find a way to help you and, most importantly,
we are not afraid to win!

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Federal Charges in Michigan & Federal Criminal Investigations

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Federal crimes are grouped into four classifications depending on their possible maximum penalties: felonies (1 year or more), misdemeanors (1 year or less), infractions (5 days or less), and petty offenses (maximum fines of $5,000 for individuals and $10,000 for organizations).

Felonies and misdemeanors are further classified into classes. They are as follows:

Felonies:
  • Charged with a Federal CrimeClass A — Life imprisonment or death
  • Class B — 25 years or more
  • Class C — 10–25 years
  • Class D — 5–10 years
  • Class E — 1–5 years
Misdemeanors:
  • Class A — 6 mos.–1 year
  • Class B — 30 days–6 months
  • Class C — 5 days–30 days

The classifications are used primarily in determining additional consequences of sentencing, such as the allowable term of supervised release and whether charges may be brought by indictment or information.

Felonies must be brought by indictment unless defendant waives and misdemeanors may be charged by indictment, information or complaint. All felony offenses must be tried before a district court judge. Misdemeanors may be tried before a magistrate judge when the defendant consents in writing.

Federal Prosecutors – The United States Attorney’s Office

Increasingly, federal prosecutors work with local law enforcement officials, either directly or through joint federal and state task forces; however, the main federal investigative agencies for the United States Attorney’s Office are the: Federal Bureau of Investigation (“FBI”), Secret Service, Customs & Border Protection Service, Bureau of Alcohol, Tobacco, Firearms & Explosives (“ATF”), Internal Revenue Service (“IRS”), and U.S. Postal Inspectors.

Federal Criminal Investigations

Criminal investigations are initiated in one of two ways: (1) law enforcement officials may suspect a crime is being committed and begin an investigation that may lead to felony or misdemeanor charges or (2) law enforcement officials may respond to the commission of a crime, arrest their suspects, and then conduct a full investigation of the case. Federal cases generally arise from investigations and rarely result spontaneously from crime in progress.

Federal Crimes Charges in Michigan

Law enforcement officials must comply with both constitutional limitations on their powers, like the Fourth Amendment for example that protects against unreasonable searches and seizures, and proper procedures under the Federal Rules of Criminal Procedure. The Fifth and Sixth Amendments to the Constitution govern when and how officers can interrogate potential suspects who are in custody. Any evidence seized by the government in violation of the law may be subject to suppression. If the evidence in a case is suppressed, it could lead to a dismissal of all charges.

Arrest and the Start of Prosecution

In those cases where a suspect is arrested without a warrant, the officers must file a complaint in the United States District Court. A magistrate judge decides whether there is sufficient probable cause to hold the suspect until formal charges can be filed. If the defendant remains in custody, prosecutors have 14 days to conduct a preliminary examination. At a preliminary examination, the Assistant United States Attorney would have to introduce sufficient evidence to hold the defendant for trial. In practice, preliminary examinations are rarely held in federal court and, in the alternative, prosecutors will opt to obtain an indictment from a grand jury before the 14-day period expires. Every defendant charged with a felony in federal court is entitled to an indictment. If a defendant is only charged with a misdemeanor, the prosecutors may file an information with the court and an indictment is not necessary. If a defendant makes bail and is out of custody following his arrest, prosecutors have 21 days to conduct a preliminary hearing or obtain a grand jury indictment. In some cases, especially those involving lengthy investigations or multiple defendants, prosecutors will obtain an indictment before a defendant is arrested or file a complaint with a request for an arrest warrant. In many of these cases, the indictment or complaint will remain sealed or secret until the arrest is made.

What do I do if I am charged in federal court?

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In the unfortunate event you or a loved one becomes the target of a federal investigation, a complaint or an indictment, it is critical that you obtain experienced legal counsel as soon as possible. Things happen quickly in investigations and in court and any delay can cause missed opportunities to gain an advantage for the defendant. If you or a loved one is being investigated for or prosecuted on felony or misdemeanor charges in the United States District Court in Detroit or elsewhere in Michigan, call LEWIS & DICKSTEIN, P.L.L.C. right away at (248) 263-6800 for a free consultation or complete a Request for Assistance Form.

 

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Functional Magnetic Resonance Imagining Lie Detector Tests are not Admissible in Federal Court

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Lie Detector Tests are Not Admissible

In a case of first impression, the Sixth Circuit Court of Appeals (which covers Michigan) determined as a matter of first impression that results from a functional magnetic resonance imaging (fMRI) polygraph test should not be admitted in to evidence in a federal criminal case.

United States v Semrau involved a PhD psychologist who was accused of overbilling Medicare for a higher level of services than what was actually provided. One of the defenses was that the fMRI lie detector test showed the defendant to be generally truthful. The trial court excluded the test results, under FRE 702, stating (1) there were no reliable or measurable error rates for fMRI lie detection testing, and (2) there was uncertainty as to whether the principles and testing methods had been applied reliably to the facts of the defendant’s case. The Sixth Circuit Court of Appeals concluded that the jury would more likely be confused rather than helped by the expert testimony and evidence. The results were also inadmissible under FRE 403 due to concerns with using lie-detection test results solely to bolster credibility.

Creative criminal defense

The fact that this matter made it to the federal court of appeals is due to the creativity of a criminal defense attorney. It is part of the criminal defense attorney’s job to protect a client’s constitutional rights, raise all defenses that are available to him/her and, when possible, think “outside the box” and develop new theories that can, or may, apply to the client’s particular case.

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Fearless, aggressive Michigan criminal defense lawyers

The lawyers at LEWIS & DICKSTEIN, P.L.L.C. have decades of experience in defending people charged with state and federal crimes. We have represented criminal defendant’s across the State of Michigan, and across the United States. If you, or someone you know, needs an aggressive and creative defense on a state or federal criminal charge, please contact the attorneys at LEWIS & DICKSTEIN, P.L.L.C. at (248) 263-6800 or complete a Request for Information Form and one of our attorneys will contact you.

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How Can a Federal Sentence Be Commuted?

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In 2010, former President Obama signed the Fair Sentencing Act. It was intended to reduce unfair sentencing disparities in offenses involving crack cocaine. The problem was that the Fair Sentencing Act did not apply to offenders that were sentenced before its passage. So, there are now people in federal prison who are serving sentences under the old law, who would be sentenced to substantially less time in prison if they were sentenced under the new law – for the same crime!

Federal Revocation and Sentencing Proceedings

In December 2016, President Obama took steps to correct this situation. He commuted the sentences of eight men and woman who had served more than 15 years in prison for crack cocaine offenses. The offense was the first offense for two of these people – but because the sentence was mandatory the court had no discretion.

President Obama has directed that he will consider additional applications for commutation of sentence to restore fairness and proportionality to people that deserve that consideration. The United States Department of Justice is committed to finding additional people who might qualify for clemency.

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Qualifying for Clemency

To qualify for potential clemency, a candidate must have a clean prison record, do not present a threat to public safety, and were sentenced under out of date laws that have since been modified because the laws were no longer considered appropriate. Clemency is not being limited to just crack offenders, although they are the most obvious candidates. People incarcerated for other offenses may be entitled to a commuted sentence if they meet the following six criteria: they must be (1) inmates who are currently serving a federal sentence in prison and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today; (2) are non-violent, low-level offenders without significant ties to large scale criminal organizations, gangs or cartels; (3) have served at least 10 years of their sentence; (4) do not have a significant criminal history; (5) have demonstrated good conduct in prison; and (6) have no history of violence prior to or during their current term of imprisonment.

It is important that the federal government is taking appropriate steps to correct the mistakes of the prior law.

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Michigan Criminal Defense Attorney – Federal Commutation of Sentencing

If you know someone who could possibly qualify for a sentence reduction based on the change in sentencing laws, it is important that you have the assistance of someone that understands the system and works in federal court on a regular basis. The attorneys at LEWIS & DICKSTEIN, P.L.L.C. have many years of experience practicing in federal court and have a knowledge of federal law and procedure that is unparalleled. If you have questions regarding possible clemency or anything related to federal law, the attorneys at LEWIS & DICKSTEIN, P.L.L.C. are available to help. Please contact us at (248) 263-6800 or complete a Request for Assistance Form and one of our attorneys will contact you.

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“We will find a way to help you and, most importantly,
we are not afraid to win!

– LEWIS & DICKSTEIN, P.L.L.C.

Convicted Former Cop Granted Special Privileges

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When poor and/or poorly represented defendants go to jail, they stay in jail. If you are wealthy, represented by a good attorney, or especially if you are a former cop in Wayne County, you get treated better than the common folk. This means that you get out of jail on a reasonable bond.

Special Privileges and Treatment for Police OfficersEx-narcotics officer Robert McArthur doesn’t have to worry about finding ways to pass the time in jail because he was just grated a Monday through Friday work release. What will the officer be doing during his time away from Wayne County Jail, he’ll be working in his Riverview tanning salon. The police officer was the third defendant to be convicted as part of a 2005 drug case where the officers and prosecutor in charge of the case knowingly allowed a witness to perjure himself while on the witness stand. The judge who presided over the cocaine case, Mary Waterstone, is the only defendant who has not plead to the charges and she is set to stand trial in June on a felony misconduct charge.

After being convicted of suborning perjury, ex-Wayne County Assistant Prosecutor Karen Plants spent 89 hours a week outside the jail as a social worker. Wayne Circuit Presiding Judge Timothy Kenny recently told McArthur that he would be getting 45 hours a week to tend to his tanning business while serving a 90-day sentence.

According to Judge Kenny, the work release program is designed to prevent “economic collapse” for prisoners while serving jail time. A very high percentage of individuals incarcerated in Oakland County Jail, Wayne County Jail, Macomb County Jail, Washtenaw County Jail and other local facilities are suffering “economic collapse” but are not being allowed to work and support their families. Why the difference? Simple…money and good legal representation.

The Criminal Defense Attorneys with my law firm, LEWIS & DICKSTEIN, P.L.L.C., understand how critical it is for our client’s to be able to maintain employment in the event of a conviction. In those cases where our clients have no alternative but to serve some jail time, we do everything possible to ensure the safety and security of our clients and their families. Many lawyers when hired to represent a client who is facing “economic” collapse simply do not have the time, energy, resources or the fight to do what is necessary to find an alternative to no-release jail time.

We have a plan that has been developed over the course of many years, which maximizes a client’s ability to maintain their livelihood after sentencing. We explore every possible non-jail option and, if jail has to be imposed, we take every effort to seek a delayed jail sentence, a reduced jail sentence, a suspended jail sentence or work release. In Oakland County, there is virtual work release which is basically home confinement on a tether but with an allowance for the client to work as much as 60 hours per week.

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If you are accused or charged with a crime that may result in a potential jail or prison sentence, we would like to try to help you. If you call for a free consultation with Criminal Defense Attorney Loren Dickstein or Criminal Defense Lawyer Randy Lewis, we will meet with you, patiently learn about your situation, and develop an intelligent, creative plan for minimizing the probability that you will be convicted or minimizing any potential penalty.

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“We will find a way to help you and, most importantly,
we are not afraid to win!

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The Practice of Criminal Defense in Federal Court

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Introduction:

The practice of advanced criminal defense in federal court is much different than in a felony or misdemeanor case in a state court in Michigan. Some of the most significant differences are in the area of discovery. In state cases, the prosecution is required, upon request, to disclose most of the evidence against the defendant at the commencement of prosecution. Conversely, the United States Attorney’s office is not required to produce all of its evidence against a defendant in the same way. Essentially, the federal rules virtually allow for “trial by ambush” by permitting the production of discovery extremely late in the litigation process.

Practice of Criminal Defense

The discovery rules in federal criminal cases are set forth in Rule 16, of the Federal Rules of Criminal Procedure. Upon request, the Defendant is entitled to receive, inspect, copy, or photograph:

  • The defendant’s own statements, whether written or recorded, that are in the possession of the government
  • The Defendant’s prior record as known or available to the government Documents and tangible objects that are material to either the prosecution’s case or the Defendant’s defense.
  • The results of any tests or reports of examination that are material to either the prosecution’s case or the Defendant’s defense

In addition to the Rule 16 Discovery, there are three categories of information to which the defense is entitled in a federal case.

  • Exculpatory material (Brady v. Maryland, 373 U.S. 83 (1963))
  • Impeachment material (Giglio v. US, 405 U.S. 150 (1972))
  • Prior statements of witnesses (Jencks Act, Title 18, §3500)
  • Brady Materials (Impeachment Evidence)

It is true that the prosecution’s job is not “to convict” but to pursue the truth and further the interest of justice. Therefore, as set forth in Brady v. Maryland, the government has an obligation to provide the defense with any evidence it finds that tends to establish the innocence of the accused.

The government’s obligation to provide exculpatory information is affirmative which means that it must provide the defense with this information prior to trial even if there is not a specific request. This being said, it is critical for the defense to specifically request Brady Materials early in a prosecution to protect the defendant’s rights in the event the matter should become an issue on appeal. United States v Agurs, 427 U.S. 97 (1976).

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Giglio – Impeachment Evidence

The government also has an affirmative obligation to provide the defense with evidence that tends to undermine the credibility of their witnesses. This is referred to as impeachment evidence.

What is the difference between exculpatory evidence and impeachment evidence? Exculpatory evidence is evidence tending to show that the defendant is not guilty. Impeachment evidence is evidence that tends to show that the prosecutor’s evidence may not be credible. If a witness in a federal prosecution for health care fraud gave a statement indicating that the defendant was not involved in the conspiracy, this would be exculpatory evidence. Impeachment evidence would be, for example, a government witness’s prior conviction for perjury.

The following is a list of some Giglio type evidence:

  • Prior inconsistent statements (possibly including inconsistent attorney proffers, see United States v. Triumph Capital Group, 544 F.3d 149 (2d Cir. 2008))?
  • Statements or reports reflecting witness statement variations
  • Benefits provided to witnesses including:?
  • Dropped or reduced charges
  • Immunity
  • Expectations of downward departures or motions for reduction of sentence
  • Assistance in a state or local criminal proceeding?
  • Considerations regarding forfeiture of assets
  • Stays of deportation or other immigration status considerations
  • Monetary benefits Courtroom defense
  • Non-prosecution agreements?
  • Letters to other law enforcement officials (e.g. state prosecutors, parole boards) setting forth the extent of a witness’s assistance or making substantive recommendations on the witness’s behalf?
  • Relocation assistance?
  • Consideration or benefits to culpable or at risk third-parties?
  • animosity toward defendant, animosity toward a group of which the defendant is a member or with which the defendant is affiliated, relationship with victim, known but uncharged criminal conduct (that may provide an incentive to curry favor with a prosecutor)?
  • Prior acts under Fed.R.Evid. 608?
  • Prior convictions under Fed.R.Evid. 609?

Known substance abuse or mental health issues or other issues that could affect the witness’s ability to perceive and recall events.

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Jenks Act – Prior Statements of a Witness

The Jencks Act, entitled Demands for Production of Statements and Reports of Witnesses, states in pertinent part that:

In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of subpoena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.

After a witness called by the United States has testified on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.

If the United States claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the United States to deliver such statement for the inspection of the court in camera . . .

If the United States elects not to comply with an order of the court under subsection (b) or (c) hereof to deliver to the defendant any such statement, or such portion thereof as the court may direct, the court shall strike from the record the testimony of the witness, and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.

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The term ”statement”, as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means -a written statement made by said witness and signed or otherwise adopted or approved by him; a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; or a statement, however taken or recorded, or a transcription thereof, if any, made by said witness to a grand jury.

Jenks Act discovery materials, often the bulk of discovery in a federal prosecution, are generally not produced to the defense until right before trial (sometimes not until right before a witness testifies in the middle of trial). Unfortunately, much of this evidence is necessary for effective representation and the prosecution knows that by delaying producing of this information, they gain an unfair advantage over the defense.

Discovery in the Eastern District of Michigan

On September 8, 2003, an order was entered in the Eastern District of Michigan that was designed to streamline the discovery process in criminal cases and facilitate the orderly production of evidence to the defense. The order, entitled Standing Order for Discovery and Inspection and Fixing Motion Cutoff Dates in Criminal Cases, is applicable to all criminal prosecutions in the Eastern District of Michigan.

Generally, the order requires that the prosecution file a Discovery Notice in a timely manner, which generally outlines the government’s discoverable evidence. If denying the identification of some evidence is in the government’s interest, the government may elect not to make such disclosure but must advise the defense that such a determination has been made.

Conclusion

The role of the prosecution, unfortunately, is not clear to many prosecutors who zealously pursue convictions irrespective of the truth or justice. Many courts, innocently or willfully, regularly are complicit in the prosecution’s denial of good faith discovery to the defense. The criminal defense in any federal prosecution has to be on guard for discovery violations and aggressively pursue compliance with federal rules regarding the production of discovery.

Many assistant United States Attorneys in the Eastern District of Michigan make a genuine, good faith effort to comply with the discovery rules. Unfortunately, there are exceptions to every rule and federal and state prosecutors frequently get caught up in a culture of “the ends justify the means.” Even in cases where an Assistant US Attorney genuinely attempts to comply with discovery rules, many federal agents can be obstructive or uncooperative.

Michigan Criminal Defense Attorneys - Lewis & Dickstein PLLC

Experienced Criminal Defense Lawyers – We Can Help You

If you or a loved one is charged with a federal offense and is facing prosecution, you need a highly experienced federal defense attorney. The federal defense attorneys with LEWIS & DICKSTEIN, P.L.L.C. collectively have 40 years of experience aggressively and fearlessly defending those charged with felony and misdemeanor federal offenses. Please call us at (248) 263-6800 for a free consultation or complete a Request for Assistance Form and a federal defense lawyer will promptly contact you.

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“We will find a way to help you and, most importantly,
we are not afraid to win!

– LEWIS & DICKSTEIN, P.L.L.C.