Federal Crimes

Defenses to Federal Crimes – What You Need to Know!

The nature of the underlying crime with which you, or a loved one, is charged with determines what motions and/or what defenses are available to each and every charge contained in the indictment. Under the United States Constitution, every person must be indicted by a grand jury before they can be forced to stand trial on a felony charge in United States District Court. Of course, although the grand jury used to serve a vital function as a safeguard against the vast powers of the federal government and the individual citizen, that function, like the appendix, no longer works. Rather, the grand jury is nothing more than, basically, a rubberstamping procedure. Rarely does a grand jury not indict whoever an Assistant United States Attorney asks the jury to indict. As I'm sure you know by now, there are no defense attorneys allowed in the grand jury room. There are just the grand jurors, an Assistant United States Attorney presenting the case, the court reporter and whatever witness the prosecutor calls in to testify. Luckily, most all of the supervising federal prosecutors are pretty levelheaded and they are just doing their job in complying with the United States Constitution in seeking an indictment. That is, under the law, what they are required to do.

If you have an experienced federal criminal defense attorney, such as Joe Shemaria, you might want to try avoiding an indictment by seeking some type of pre-arrest or pre-indictment disposition of the case. Because it saves the United States Attorney's Office and the federal law enforcement agency involved a great deal of time, sometimes this is the best route to take, especially in a hopeless case. However, even a “good case” may not be recognized as such unless you have an experienced federal criminal defense lawyer guiding you. Federal laws are much different than the laws of any state and in some cases the defenses are easier to put on and win in federal court as opposed to state court.

When it comes to drug crimes, the most common motion is a motion to suppress evidence for a violation of either your Fourth or Fifth Amendment rights under the United States Constitution. As you probably already have heard, law enforcement agents must have a search warrant to search a home, office or vehicle. They must also have a search warrant to obtain your emails and content of your text messages. However, there are many, many exceptions to the search warrant requirement when it comes to anything other than your home, your office, your email and/or content of your text messages. They can now arbitrarily and without cause put a GPS on your rear bumperto see where you are going or to follow you.

Your Fifth Amendment right to remain silent and have an attorney present prior to any questioning has been largely diluted in the last few years by none other than our United States Supreme Court. Law enforcement officers rarely comply with the rules of Miranda v. Arizona, as they have little to lose and a lot to gain by employing psychological and other techniques to sidestep giving you your Miranda warnings prior to interrogation. Only an experienced federal criminal defense lawyer such as Joe Shemaria can tell you if your statements to federal agents (or even state law enforcement agents for that matter) can be used in court against you. After one has been advised of their Miranda rights, if he/she does not affirmatively and unequivocally assert his/her right to remain silent or right to have an attorney present prior to any questioning and goes ahead and answers questions, that person is deemed to have waived their right to remain silent and/or to have an attorney present prior to any questioning. Oftentimes a person wants to remain quiet just to hear exactly what the federal law enforcement agent knows and/or has to say and, for that reason, does not immediately and unequivocally invoke his/her right to either remain silent or to have an attorney present prior to any questioning. Remember that federal law enforcement agents are very well trained and they will go to extremes to avoid having to give Miranda warnings. The most common scheme/device these days is to emphasize to a suspect or a “person of interest” that they are “free to leave” AND “you are not under arrest,” even though they are blocking entry and exit your front door at 6 AM in the morning when you're either asleep and/or trying to feed your children. And, of course, isn't it somewhat of a joke to tell somebody in their pajamas at 6 AM that they are “free to leave?”

When it comes to drug crimes, in my mind the first defense I think of is whether this is a case where entrapment can be used as a defense. I have used it personally many times successfully in federal court. It will oftentimes work in federal court, depending on the facts of the case, even though it would never work in a California, Nevada or Arizona state court. This is another reason why you need an experienced federal criminal defense lawyer. Most all federal drug cases have their origin with some informant who would do anything to avoid having to go to prison for a long period of time. Some of these informants are the most unreliable scumbags ever to walk the halls of the courthouse. Nevertheless, prosecutors cling to them as without the perjury that most of them will willingly commit on the witness stand, the prosecutor has no case. . . .

The primary tool for every experienced federal criminal defense lawyer is to go through the discovery provided by the government attorney and see where the weakest link in their case is and then to “drill down” and “drill hard.” Proof beyond a reasonable doubt is required in every federal criminal case (as well as every state criminal case, for that matter). Where there is no evidence proving an element of a crime beyond a reasonable doubt, there can be no conviction even though there may be moral “guilt.” Get a lawyer who's not into forming moral judgments! You're better off with a pit-bull that knows how to tear the government's case apart!

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