Federal Crimes

What Makes a Federal Crime?

When faced with serious criminal charges, defendants may often encounter the words “federal offense” as their ordeal continues. Federal crimes are crimes that violate federal law; meaning, the defendants actions in their case violated the laws of the country, and he or she must be tried at a higher level than that of a state violation. A federal crime, under most circumstances, involves an offense that disturbs federally-regulated activity. Things like tampering with mail, hijacking an airplane, or tax evasion are examples of federal law violations. Subsequently, because a federal law has been violated, defendants must face trial in court under federal prosecution guidelines. There are a few aspects in particular that separate a federal crime from a state crime.


One of the key factors that separates these two is jurisdiction. A simple way of looking at jurisdiction is considering whether the crime took place on federal or state property. For instance, vandalism on your local town’s recreation center would be state property, but vandalism in a national park would be federal property, and as such, crimes in it would fall under the jurisdiction of the federal government.

This also means that the investigation is normally conducted by an agency of the United States government, such as the FBI, Border Patrol, NSA, or DEA. These agencies will usually work hand-in-hand with your state’s law enforcement as well.

When the time comes for trials and court appearances, federal crimes will be prosecuted by a United States attorney, and the hearings will be in a United States District Courthouse. The burden of proof is on the prosecutor, and evidence must be able to prove beyond a reasonable doubt that the defendant is guilty of the crime(s).

Double Jeopardy? Not Quite

If you are found guilty of a state crime, you can also be found guilty on the federal level for the same action. This takes many defendants entirely by surprise. If you are found guilty of a state crime, you can also be found guilty on the federal level for the same action. This takes many defendants entirely by surprise. Suppose someone decides to rob a bank; this bank will likely be insured by the FDIC. The man goes in, steals money from the bank and is apprehended. Later, when discussing options with his lawyers, he finds that his actions landed him charges on both the state and the federal level! Since a state is a sovereign entity within a larger sovereign entity, the United States, violating the state laws against robbing a bank grants state charges. Meanwhile, violating the federal law of robbing a federally insured and regulated bank grants federal charges, and in court, our bank robber now faces both charges at once. When this happens, in most cases, a guilty verdict for both cases means the state sentencing is added to the federal sentencing. When this happens, in most cases, a guilty verdict for both cases means the state sentencing is added to the federal sentencing.

How is Federal Court Different from State Court?

We have already discussed what constitutes a federal crime, and even touched upon some consequences of what can happen with a guilty verdict, but how does the court procedure differ from state court to federal court? In many ways, the states mirror their courts after the larger, national structure.

Circuit Courts

Primarily, the biggest difference is that state courts govern state laws, whereas federal courts govern the laws of the nation. In essence, state courts are empowered by their own state constitutions, whereas federal courts are empowered by the United States Constitution. Also, it is important to note, federal law always has higher authority over state law. Each state has its own supreme court for state-level appeals, and the United States government has its own Supreme Court. While federal courts consist of a few separate categories, it is common to see state courts that have specialized areas of practice (e.g. small claims, family, juvenile, etc.). When a party is dissatisfied with a federal court decision, they may be able to take their case to one of the thirteen U.S. Courts of Appeals; whereas in a state court, a party must go to their state’s appellate court. Finally, cases reach the U.S. Supreme Court if they have gone through the U.S. Court of Appeals, where the final determination will be made. Each state’s Supreme Court gets the final say in most cases, as only certain cases that come from the state level are reviewed by the U.S. Supreme Court.

Appointing Judges

All judges that take the seat at federal court are nominated by the President and then confirmed by the Senate. These judges will most often be able to hold their seat for life, however in the event of inappropriate behavior, there is a possibility of Congressional impeachment. State courts, on the other hand, are chosen through methods such as election or state appointment for a period of time, possibly life, and judges can lose their seats dependent upon the state’s constitution.


Although criminal cases are heard in both state and federal courts, certain cases go directly to federal court, while others are almost always resolved on the state level. It is rare for state-level disputes to make it to the U.S. Supreme Court, and even if a state decision is appealed, the U.S. Supreme Court may decide not to hear the case out.

Common types of cases heard in federal court include:

  • The determination of the constitutional nature of a law
  • Disputes involving government treaties or national law
  • Cases that involve public ministers or U.S. ambassadors
  • Violation of a federal law
  • Maritime law
  • Bankruptcy
  • Habeas corpus

Disputes that are resolved in state courts include:

  • A vast majority of criminal cases
  • Contract cases
  • Personal injury cases
  • Family law cases
  • Cases involving estates and wills
  • Small claims cases

The criminal process for federal charges operates a bit differently from the standard procedure for state criminal charges. The steps in federal charging, prosecutions, and trials are slightly different than those of their state counterparts.


As usual, the criminal justice process begins with the arrest. Federal crimes, however, are not investigated by state police. Instead, these crimes are investigated by federal agents, such as the DEA or the FBI. They will make an investigation and arrest, often with the aid of the state police. Once the arrest is made, court proceedings can begin.

Initial Appearance

After you are arrested, you will make an initial appearance in court. This will not be at a California State court; it will be the Federal court closest to your county. The initial appearance is similar to a preliminary hearing, but instead of the prosecutor mounting probable cause against a defendant, the defendant is brought before the judge and the judge will make the determination whether or not to continue proceedings. If you are unable to find a private attorney, the court can appoint one for you. If the judge deems that the evidence against you presents reasonable cause to move forward, you will then move on to the arraignment stage.


At the arraignment, as with state courts, you will be formally read the charges against you and given the option to enter a plea. If you are being represented by an attorney at this time, he or she will assist you in the process and may recommend a guilty plea if he or she has discussed options with the prosecutor.

Pretrial Period

If you entered a plea of “not guilty” at your arraignment, and decided to move forward to a trial, the next step in the process is the pretrial period for discovery and motions. Federal court motions are similar to those at the state level, and they serve similar purposes as well. These motions can serve to suppress evidence or dismiss charges, and are approved by the judge. Plea bargaining may continue throughout the duration of the period.


If no plea bargain agreement is reached, and the parties decide to move forward to trial, the trial itself will follow standard procedure, just the same as other courts. Your attorney, the judge, and the prosecution will go through the voir dire process to select a jury. Once the jury is chosen, the trial proceeds the same as it would at the state level: opening statements, evidence presentation, closing arguments, deliberation, verdict, and sentencing.


If you are found guilty, and are dissatisfied with the verdict, you may file for an appeal if you feel that there was an error in the legal process or in the courtroom procedure. A successful appeal does not necessarily result in an overturning or release, however, it may be your best bet if you believe some error occurred.

Federal Court Process

If you have been charged with a federal crime and your case proceeds to trial, you will be prosecuted by the Criminal Division of the United States Attorney’s Office, which is divided into seven Sections: General Crimes; Major Frauds; Narcotics Enforcement; Reactive Crimes; National Security and Cyberspace Crimes; Financial Litigation and Appellate. The nature of charges against you will dictate which Section is assigned to prosecute.

A federal trial will begin with selecting a jury. During this phase, both sides are permitted to ask questions to the potential jurors in order to determine any potential bias which could disqualify them from being impartial. The judge will then make the final selection of jurors. After a jury has been empaneled, the U.S. Attorney will present an opening argument, followed by the defense’s opening argument. Each side will then have the opportunity to present and challenge evidence. The Federal Rules of Criminal Procedure will govern what evidence is and is not admissible. At the conclusion of the presentation of evidence, each side will present a closing argument. At this point, the jury will begin deliberations. FRCP Rule 31 mandates that a jury verdict must be unanimous.

If a guilty verdict has been reached, the next phase will be sentencing. FRCP Rule 32 mandates that the court obtains any information which could influence the court in a sentencing decision by conducting a pre-sentence investigation. The court will then consider this information in light of the verdict and make a sentence that it deems appropriate.

Federal Court Sentencing Guidelines

Crimes prosecuted in a federal court follow federal procedures. It only makes sense that when the time comes for sentencing a conviction, federal courts carry their own guidelines on how to perform the sentencing. Relatively speaking, the Guidelines were enacted somewhat recently, by the Sentencing Reform Act of 1984, in response to apparent sentencing disparities that existed at the time. Prior to this act, sentencing was given a maximum and a minimum, but the amount of prison time served was determined by a parole officer or administration. The reform allowed the terms and limits of a person’s sentence to be set at the time of their sentencing. This is a much easier sentencing system for both defendants and prisons, as the defendants will now receive the full terms of their sentence without having to work with a prison administration to determine the amount of prison time while serving their sentence.

Offense Seriousness

Any offense prosecuted in federal court is evaluated based upon seriousness; the more heinous the crime, the higher the offense seriousness level. There are 43 levels of offense seriousness established by the guidelines. Each crime is given a base level of offense, which is where the sentencing will start. If the crime has exacerbating circumstances surrounding it, the offense level of the crime can increase beyond the base level it is originally assigned. Many offenses have pre-determined offense level increases. For instance, robbery on its own will have set increase on its offense level if a weapon is shown, or if a firearm is discharged. There can also be adjustments made to each offense that will increase or decrease its offense level. For example, if the defendant was minimal participant in the crime, the offense level may decrease, but if the defendant chose a victim based on age or mental condition related vulnerability, the offense level may increase. There are a number of factors that can influence adjustments or characteristics of the crime.

Criminal History Category

The defendant’s criminal history will also be taken into account. Their criminal history will land them into one of six categories, numbered with roman numerals. The first category, Category I, is the least severe and will be used for most first-time offenders. Category VI is the most severe and is used for those who have lengthy, or very serious, criminal histories.

The Guideline Range

The official offense level is then determined using any adjustments and characteristics that are applied to the crime. Once the level is determined, there is a table that lists the appropriate amount of prison sentencing for the criminal. This determination is made according to the Criminal History Category for which the defendant belongs. The table typically has the sentencing listed by months. Again, the higher the offense level and Criminal History Category, the more severe the sentencing.


If criminal proceedings have been completed and you have been convicted and sentenced, there is one more process you can explore. The appeals process is lengthy, and it puts the case and the happenings at your trial under heavy scrutiny. However, the benefits of a successful appeal may far outweigh the efforts. A successful appeal does not necessarily mean an overturning of the ruling, but it can still work to your advantage.

Appellate Courts

The courts of appeals, or appellate courts, hear appeals cases. There is a set of appellate courts for state cases and a set for federal cases. You may also hear these courts referred to as circuit courts. For convictions at the federal level, your appeal must go to a federal appeals court. There are a number of US appellate courts across the country, and you will likely send your appeal to the closest to your county. To begin the appeals process, your lawyer must submit a brief regarding the events of the trial and what portions of the trial you believe are in error with the law. It is important to know that if you are acquitted in federal court, the government cannot make an appeal for the “not guilty” verdict.

Once the appeals process has started, the court will review the brief your lawyer submitted and will make a decision. It is common for appeals to end without reaching the level of a hearing. If the court desires, judges may bring in both the prosecution and the defense, and each side will be given a short period of time to present their arguments. In most cases, decisions made by an appeals court are final. At times, the case may end up back in trial court for more proceedings, or in rare cases, the case will continue onward to a higher-level court. If you lose in a federal appeals court you have the right to file a “writ of certiorari,” which asks the Supreme Court to review your case, however, they are not obligated to do so. Typically, they will only do so if it involves an issue of extreme importance, or when several federal courts have interpreted something differently.

Successful Appeals

Winning at an appeal does not guarantee an overturn of your sentence or release from prison. You may see sentencing changed, some (but not all) of your charges overturned, charges amended, or you may go to trial once more. If you are convicted, the government cannot appeal for more charges against you, but if the prosecution desires they may pursue an appeal on your sentencing.

Bail Pending Sentencing or Appeal

When convicted of a crime, defendants often have a separate sentencing hearing. At times, the judge may grant a period of release prior to a defendant’s sentencing. In these cases, the judge will set bail for the convicted defendant’s release. The bail procedure can also be used for convicted defendants who are awaiting judgement on appeals. However, these circumstances are different depending on each case.

Bail Pending Sentencing

If you are convicted and awaiting a sentencing hearing, you may want to contemplate asking for a release from the judge. However, the judge will not simply grant a release request. You and your attorney must prove with clear and convincing evidence that you do not pose a flight risk, meaning you are not likely to flee the state or county. You must also prove you do not pose a danger to the community, meaning that you are not likely to cause harm to the community within which you are convicted. These are also the same circumstances the judge utilizes to sets bail prior to the trial. If you were convicted of a drug-related offense or a violent crime, it may be significantly more difficult to get a release on bail. Serious crimes offer fewer opportunities for a bail release pending a sentencing hearing, while the judge will likely be more lenient for minor crimes. In addition, the judge will factor in things such as:

  • Criminal history
  • Any history of failure to appear in court
  • Any connections to the community you have; e.g. living, working, or having relatives in the area
  • Likelihood to commit non-violent crimes while out on bail

Another thing to keep in mind is that now that you have been convicted, there is no longer the presumption of innocence; in fact, there is now the presumption of a conviction. This means that when the judge is factoring in everything to determine whether you are eligible for release, the odds are usually stacked against you, now that you are actually convicted of the crime for which you stood trial.

Bail Pending Appeal

While awaiting appeal you may also have an opportunity to be released on bail. Specifically for release on bail pending appeals cases, you and your lawyer will need to show that the appeal is not frivolous or delay tactic in the already established bail proceedings. For appeals on violent crimes or severe drug offenses, it may be difficult to obtain a bail release. Additionally, appeals may not make it to the hearing stage so you may not even be granted the opportunity to have a bail amount set.

Talk to your lawyer about your options with bail. An experienced attorney may be able to convince the judge that it will help your case if you are able to discuss the matters face-to-face with your attorney.

Withdraw a Guilty Plea

If you entered a guilty plea to a crime, and face unfavorable terms about which you were not properly educated, it may be possible to withdraw your guilty plea. For instance, if you believed that a guilty plea would have provided a certain outcome, and in court, due to some extenuating circumstance, you land a harsher sentence than what you anticipated, you may have the opportunity to withdraw your guilty plea. This motion is typically employed if a defendant received poor advice from a prior lawyer or acted on their own before obtaining an attorney.

The key for this motion to be put into use relies on whether or not the guilty plea was done in your best interest. If you entered a guilty plea and suddenly discover an unforeseen penalty, or discover that a trial may have gotten you a more favorable outcome you may be able to withdraw your guilty plea. Likewise, if for whatever reason you were dissatisfied with your prior attorney, a withdrawal of your guilty plea may be exercised as well.

“Good Cause”

The standard of evaluation of this motion is the notion of “good cause,” meaning that you must provide sufficient and clear cause for your guilty plea withdrawal. Good cause is not the same as a mere claim that you entered your plea without knowledge of consequence, you must show that clearly because of your lack of knowledge or expertise, your guilty plea was not your best option. Some examples of this include:

  • You entered a guilty plea without an attorney: If you are not represented by an attorney, you may not be aware of all your options, and you may feel as though pleading guilty is your only option. Attorneys are able to provide the necessary help and guidance to get you through the legal process. Certainly, things like traffic tickets or municipal code violations may not necessitate an attorney, but a seasoned lawyer for criminal proceedings is almost always necessary.
  • The guilty plea carried unforeseen consequences: If you plead guilty to a crime without knowledge of things like professional or state license revocation or suspension, you may have good cause to withdraw the plea. Certain crimes with exacerbating circumstances can result in punishments that are not common knowledge. An attorney will have proper knowledge of your crime and the punishments that fit the circumstances.
  • You were dissatisfied with your attorney’s performance: If your attorney advised you poorly, you may have entered a guilty plea that you didn’t quite understand or feel was right. You may be able to withdraw your guilty plea due to ineffective counsel, and seek a new attorney to continue the process.
  • Your plea was not entered freely and voluntarily: All guilty pleas must be entered free and voluntarily. If you are under threat or bribery to plead guilty, you may be able to withdraw your guilty plea.

Motions for a New Trial

Sometimes in court, certain circumstances can lead to a wrongful conviction. At times these circumstances can be caused by error, poor judgement, or corruption. One motion that your attorney can file is known as a “motion for a new trial.” What this motion does is exactly what it sounds like: It sets up a brand new trial with a new jury. This is not a motion that is taken lightly. For the judge to call for a new trial, your lawyer will need to meet the requirements and prove that the trial itself is flawed in some way. If the jury has been negatively influenced or impacted by some error you may need a new trial to prevent conviction.

Potential Causes for a New Trial

There are a number of reasons why you may want to file a motion for a new trial. Your lawyer may advise you to call for a new trial if one of the following happens:

  • Jury Misconduct: This can occur if the jury by some means has received or obtained information outside of the what is admissible to the case itself. This information must be both pertinent and influential to the jury’s or the specific juror’s opinion of the case, and it must also affect you negatively.
  • New Evidence: This can be considered as ground for a new trial if new evidence is discovered that can help your case. The evidence must be adherent to the court’s standards for it to be accepted and for a new trial to be warranted.
  • Insufficient Evidence: If you and your attorney can prove that there was insufficient evidence for a conviction, you can motion for a new trial. If the jury has already provided a guilty verdict, the trial charges may just be dropped in lieu of a new trial due to double jeopardy.
  • Trial Record Lost or Destroyed: If a court record or transcript is lost or destroyed, the defense no longer has anything to make an appeal with and they can call for a new trial based upon these grounds.
  • Prosecutorial Misconduct: If a prosecutor engages in misconduct that results in jury prejudice against you, you may be able to call for a new trial. Misconduct entails things such as: bringing up inadmissible or stricken evidence, improperly or predatorily cross-examinations of you or other witnesses, or appealing to the jury’s passion or prejudice.
  • Error of Law: If the court itself has made a legal error such as improper rulings or failing to direct the jury properly you may also have grounds to request a new trial.

It is important to remember that for any of these factors to actually propel your motion to be granted, these factors must have impacted you negatively. It is not enough for them to merely happen; the jury must have been influenced, or the case must have affected you, before the judge will rule that a new trial is necessary.

Sentencing Hearing

After you either plead guilty or if you are convicted in court, you will be sentenced. A sentence is a measure of punishment that the judge deems to fit the crime of which you were convicted. In most misdemeanor plea bargaining cases, or in traffic offenses, the judge will often deliver the sentence directly after a guilty verdict. However, the defense may elect to schedule a sentencing hearing for the conviction.

Sentencing Hearing

The sentencing hearing exists to give the judge, the prosecution, and the defense an opportunity to discuss the charges, and determine a potentially appropriate sentence. Both the defense and prosecution will be heard in order to reach a sentence. Like any other hearing, you still have the right to an attorney. You can also present evidence for your case, and present sentencing alternatives to the judge and prosecution. You will not, however, be given the opportunity to conduct cross-examinations.

The hearing is generally less restrictive and formal as a trial, but there are still certain rules in place. Throughout the trial, attorneys are given the chance to object to certain sentences, however, the objection must be meaningful. Judges must be willing to consider objections. All parties should be willing to consider rehabilitation over detention. Your defense attorney will likely want you to avoid jail time, and should be willing to pursue other methods of sentencing. It is important to remember that in a sentencing hearing, sometimes statements and evidence that was previously inadmissible due to illegal search or not being under oath of law may make an appearance at the sentencing hearing. In these instances, the defense must have notice of the use of these items for the prosecution to bring them against the defendant. Prior arrests that did not result in convictions, however, cannot be used against you, unless they have some sort of factual information that can be presented in a non-misleading way.

Your Sentence

While trying to determine what your resulting sentence will be, your attorney will want to suggest as many things as possible to reduce potential jail time. Your attorney will want to suggest options such as:

  • Rehabilitation instead of incarceration: Jail time can potentially be avoided if you and your attorney are able to convince the judge that rehabilitation is a better option for you than serving a jail or prison sentence. This can work particularly in the case of drug- and alcohol-related offenses or for first-time offenders.
  • Concurrent sentences: If you must be incarcerated, your lawyer will want to argue for concurrent sentences. This means that sentencing for separate crimes does not need to be served one after another (known as “consecutive sentences”), instead they can be served at the same time, for a speedier release.
  • Eliminating sentence enhancements: At the sentencing hearing, the judge may decide to eliminate or dismiss a sentencing enhancement for which you may have been found guilty. This will likely reduce prison time.

Sentencing Memoranda

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Direct Appeal

If you have been convicted of a crime, your next step is to either serve your sentence or continue the fight in the appeals process. The appeals process is one option in which you can work to overturn a sentence and/or charge or dispute the outcome of the trial. The trial dispute is argued on the basis that there was some manner of error in the law or errors during the judicial process. Things like prosecution misconduct, judge misconduct, jury misconduct, inadmissible evidence coming to light, or any number of other errors can all affect the outcome of a trial. If you feel that one of the circumstances has caused your conviction, you may have a shot at the appeals process.


Appeals begin after a conviction. Your lawyer will advise you on whether or not it is wise to begin the appeals process. In most cases, you can file a brief of the case to the appellate courts. Most appeals can be resolved at the level of a judge reviewing a case brief, however, certain times may necessitate both parties to enter the court for an appellate hearing. Your lawyer will represent your side and your interest in the appeal, and the prosecution will be there as well to argue their side. After the hearing ends, the judge will make a determination as to whether or not there was an error. If you are not successful in the primary appeal, there is one more step you can take to try and push the case through. It is possible to go to a higher court than the one to which you initially made the appeal.

Direct Appeal

A direct appeal is an appeal that goes above the court you initially filed with to the highest court in your state’s jurisdiction. Again, with a direct appeal, you are still trying to prove that there was an error of either trial, judicial, or the law itself that interfered with proceedings and caused you to have a guilty verdict. While any case has the potential to be heard, it is rare that the Supreme Court of the nation or state to decide a case. Typically, cases that go that far up the ladder deal with issues of legal interpretations or occur when two appellate courts have ruled differently on the matter.

Your lawyer will be able to advise you on the chances of your success with a direct appeal, and will know the best ways to try to get the court’s attention. Contact an attorney today to look into your chances of appeal.

Federal Writ of Habeas Corpus

If your Constitutional rights are being violated while incarcerated, detained, or imprisoned, there is a course of action you and your attorney can take to remove you from where you are being held.. This action is known as a writ of Habeas Corpus. Habeas Corpus, also known as the “Great Writ” is, in essence, a request to allow you to face the court. The writ issues a court order to determine the legitimacy and legality of your imprisonment, and if necessary, your release.

What Does it Mean?

Habeas Corpus is a Latin phrase for “you should have the body” or “produce the body.” Every imprisoned individual has the right to file a writ of habeas corpus, however the success of the writ is not a given right. Any release or determination is at the discretion of an appellate judge. The purpose of this writ is to provide illegally, falsely, or improperly imprisoned or detained persons with the ability to gain a release. This writ ensures that imprisoned or detained persons do not have their rights violated. What it also does is ensure that if a writ is not granted, the prisoner can hear on what grounds upon which the government is permitted to hold them in detention. The writ of habeas corpus is, in essence, the defendant’s right against unlawful detention, and also the right for defendants to know exactly why they are being held.

Can it be Suspended?

Although the right to file a writ of habeas corpus is a guaranteed Constitutional right, there are times when prisoners may not petition for habeas corpus. These times are typically restricted to times of instability or danger to the government. This includes wartime, rebellion, or period of extreme civil unrest. This is outlined by the same section in the Constitution that empowers the writ itself.

How do I Put a Writ of Habeas Corpus Forward?

If you are working with a lawyer, he or she will be able to put this information forward to the courts for you. However, detained persons are able to file this writ themselves. The first thing to consider is that you must file habeas corpus with the state court prior to seeking it in a federal court. There are separate proceedings for both the state and the federal level. Your attorney can work with you while you are being detained in order to try and get the writ through, and eventually take steps towards bail release or other measures.

Being held in jail or having a loved one held in jail can be difficult. The legal process for criminal acts can be trying, confusing, and altogether intimidating. Contact an attorney and learn what can be done for your case.