Whether you are in federal or state court, well-crafted pretrial motions are essential to a successful defense. Pretrial motions are requests by way of formal motion, which may ask for the court to compel the prosecutor to turn over evidence, to dismiss the indictment or certain counts, to exclude or limit certain evidence, or to prevent the prosecutor from making certain arguments to the jury, among other things. These types of motions may also raise discovery violations; challenge the admission of evidence from searches, electronic surveillance, identifications, and custodial interrogation; and/or challenge the sufficiency of grand jury proceedings.
We receive many calls over the course of the year from potential clients, telling us they received a “target letter” from the U.S. Attorney’s Office or State Attorney General’s Office and that they are considering whether to go to an interview with law enforcement under a “proffer agreement.”
Recent statistics show that about 96% of the criminal cases in federal court are resolved through guilty pleas. The number of cases going to trial has dramatically decreased in the past ten years. Thus, today’s criminal defense attorneys must be adept at negotiating the best possible resolution for their clients that choose to plead guilty.
The federal government has hired 300 additional prosecutors and created the Opioid Fraud and Abuse Detection Unit and the Joint Criminal Opioid Darknet Enforcement Team to investigate, uncover, and prosecute the prescribing and dispensing of opioids by healthcare professionals – doctors and pharmacists – as well as street-level sales of opioids and fentanyl. Since January 2018, over 200 doctors have been charged.
Over the past several months I have written about the increasing use of every day technology that automatically tracks our movements and records our conversations. Cellphones ping off cell towers that give the government access to our daily movements through information stored by carriers like Verizon, AT&T and Sprint. Alexa and other smart home devices can record our conversations and keep track of our search histories. Smart phone apps and Fitbits that track movement, heart rates and other physical activity can be used to track locations, times and other physical attributes that law enforcement can access to investigate a variety of crimes.
In the federal system, a person may be charged and arrested by way of a complaint or indictment. A complaint is a written statement of essential facts establishing the offense charged made under oath by the agent before a magistrate-judge. Based upon the complaint, an arrest warrant may be issued upon the establishment of probable cause to believe that an offense has been committed and that the defendant committed it. The warrant must list the defendant’s name, or description by which he can be identified, the offense charged, command that the defendant be brought without unnecessary delay before a magistrate-judge and be signed by the judge.
With the advent of “smart homes and devices,” we are now in a world once only imagined in science fiction. Our phones now track our every move, contain our internet search histories and record vast portions of our lives through photos, texts, and encrypted messages. Home security devices and cameras record not only strangers coming to your home, but also you and your invited guests. Baby monitors, smart kitchen devices like refrigerators, and home devices like Amazon’s Echo, are always on and potentially recording or transmitting. And therein lies the problem.
Anything attached to the internet – the Internet of Things – can be hacked, intercepted or legitimately recorded. Since these devices are in the privacy of our own homes or businesses, they have the ability to capture our most intimate and private conversations and actions.
Criminal defense attorneys representing non-citizen defendants are obligated to provide advice regarding the immigration consequences of a plea or guilty verdict. The Supreme Court’s decision in Padilla made it clear that failure to do so constitutes ineffective assistance of counsel.
Just the other day, "Bridgegate" cooperator and former Port Authority of New York and New Jersey official David Wildstein, was sentenced in federal court to probation. The two defendants that he cooperated against were sentenced to 24 months and 19 months in federal prison. Despite the fact that Wildstein pled guilty to two counts of conspiracy for his role in the offense, and faced several years in prison, the sentencing judge granted the government’s downward departure motion for a much more lenient sentence – in this case probation.