Federal Defense Frequently Asked Questions
Here are common questions asked of a Federal Criminal Defense Lawyer & of a Federal Criminal Defense Law Firm.
FEDERAL CRIMINAL INVESTIGATIONS
If they tell me that I am “only being investigated” or that I am “only a person of interest” or that they are conducting only a “preliminary inquiry” or any words to that effect should I remain silent?
Yes. However, you must do more than “remain silent” or only state words to the effect that you wish to remain silent. The Supreme Court of the United States has a rule that “mere silence” or “merely refusing to answer questions” does not invoke the U.S. Constitution’s Fifth Amendment privilege against self-incrimination. You must positively assert that you are not only remaining silent & do not wish to answer any questions, other than to identify yourself (you must identify yourself), but that you are invoking your Fifth Amendment right to remain silent and are requesting the advice of legal counsel.
As to “not being the focus of an investigation” or that there is a “mere inquiry” being conducted, yet that they are still asking you to answer their questions, is a police tactic which means they are trying to develop probable cause. Your responses and answers to questions can be used against you because the government investigators will claim that they did not need to notify you of your constitutional rights to remain silent under Miranda vs. Arizona because they were merely conducting an “initial inquiry”.
The most blatant example of this is when the IRS begins what they would classify as a “civil penalties investigation”, requesting documents and statements from you in regard to your IRS filings & then, subsequently, turn the matter into a “criminal investigation” based on what they found on the civil audit. You cannot refuse to turn over documents to the IRS during a civil audit but you should do so through your accountant or attorney, do not deal directly with the IRS Agents, and make no direct statements to them without the advice of legal counsel from the outset of any kind of audit.
Likewise, upon being approached by any investigator or agent of any arm of the federal government (or any police officers for that matter) and they begin questioning you about anything that you did not contact them about yourself, you should be on guard. Tell them you prefer not to answer any questions or to make any responses based upon your Fifth Amendment privilege against self-incrimination. You should then immediately seek legal counsel.
What do I do if federal agents or investigators tell me they have to take me “downtown” or to their offices for further investigation?
First ask if you are under arrest and for what. If they tell you that you are “merely being detained for questioning”, respectfully state that you will not answer any questions without the advice of counsel, other than to identify yourself. Ask them if you are free to walk away or if they are taking you into custody. If the federal agents or investigators do not have enough “probable cause” to arrest you at that point they are legally obligated to tell you so and that you may just walk away. They will give you a business card and request that your attorney contact them. That should be the end of the encounter. However, it does not always work that way. If the federal agents or investigators are strenuously arguing with you that you should voluntarily come with them to “clear up” some matter (or words to that effect), then they probably do not have enough probable cause to arrest you at that point.
Do not fight with or physically resist being placed into custody or detention. This will be sorted out in a lawful manner through your lawyer.
No matter what the federal agents or investigators say or do, you should continue to invoke your Fifth Amendment privilege against self-incrimination and never cease demanding the advice of legal counsel. Do not assume that, because you believe the federal agents or investigators have made an “unlawful detention or arrest” that nothing you say afterwards can be held against you. A judge, upon a Motion to Suppress your statements, will decide what statements, if any, would be admissible in court against you. Don’t make any statements or answer any questions other than to identify yourself.
Do they have to inform me exactly what I’m being investigated for?
No. This is another reason to invoke your Fifth Amendment privilege against self-incrimination and to immediately request legal representation.
Who investigates and prosecutes federal crimes?
Federal agencies such as the FBI, DEA, ATF, EPA and Secret Service (for Counterfeiting Currency – they do more than just guard the President and Vice President) generally perform these investigations, sometimes working in conjunction with local police departments. Prosecutions are handled not by Assistant District Attorneys as with State crimes but by attorneys with the U.S. Attorney’s Office and the Department of Justice. They are known as “AUSA” – Assistant United States Attorney. A United States Attorney for a Federal Judicial District (which usually covers multiple State counties) is appointed by the President.
HIRING A FEDERAL CRIMINAL DEFENSE LAWYER
Why do I need a Federal Criminal Defense lawyer?
Only a federal criminal defense attorney is admitted to practice in the Federal Courts. Not all State defense attorneys are admitted or qualified to practice in the Federal Court system defending prosecutions brought by a federal agency. Federal Courts use different criminal codes, statutes, prosecuting systems, and sentencing & punishment guidelines than State crimes. The two systems – State & Federal – are entirely different. The consequences in federal cases are weightier – most federal offenses carry stiffer penalties than State offenses. You need an experienced federal criminal trial attorney licensed to practice in the United States Federal Court system. Carl Haggard has been licensed to practice in all Texas Federal Courts, the United States Fifth Circuit Court of Appeals and the U.S. Supreme Court for over three decades and has years of experience in both State & Federal courts. If not admitted to the particular Federal Judicial District Court in your area or where you are being investigated or prosecuted, he can obtain permission to represent you “for that case” under the local rules of that Federal Court.
How do I know if my case will be filed in Federal or State court?
If you haven’t yet been arrested and your alleged offense involves a violation of a law passed by the U.S. Congress, as opposed to one passed by a state legislature, you will be charged in Federal Court. Many cases can be filed in either State or Federal court, depending on the alleged offense. If the arresting authorities judge that the matter of your criminal offense is broader in scope or impacting national concerns more than state concerns, you will be prosecuted in Federal Court. Drug crimes, esp. if crossing state lines, are increasingly prosecuted in Federal Court. Any crime involving more than one state is likely to be prosecuted in Federal Court. Without violating prohibitions against “double jeopardy”, the same alleged offense may sometimes be prosecuted in both Federal and State Court.
RESOLVING CASE BEFORE FEDERAL CRIMINAL CHARGES
I haven’t been charged yet but am under investigation. Do I need a federal criminal defense lawyer?
Yes – you have important rights at this stage that should be protected & which, if they aren’t, can negatively impact the outcome of your case to a high degree. Call us at 832-328-0600 or email us today for a free consultation to find out how it may be possible to resolve your case before federal criminal charges are even filed against you.
SENTENCING & PUNISHMENT IN FEDERAL CASES
How is sentencing determined?
Currently federal sentencing is at the discretion of the judge who uses the Federal Sentencing Guidelines as an advisory tool rather than, as in the past, a strict rule which must be followed to the letter. This leeway allows an experienced and skilled federal criminal defense lawyer to use this discretionary leeway of the judge to seek leniency.