Federal Criminal Justice System

By Ronald W. Chapman, ESQ, LL.M.

The Federal Criminal Justice System

The first and most obvious place to begin your journey in understanding federal criminal defense and molding a strategy to effectively defend a criminal case is understanding the federal judicial system.

The federal system can be daunting and intimidating. The vast resources by federal prosecutors, coupled with the availability of conspiracy charges and overcriminalization provide a federal prosecutor much more power than their state counterparts. Federal agents are highly educated, well trained, and eager to secure convictions against all that they target. And they get them. In fact, 99% of federal defendants are convicted and nearly all of them give up their right to a trial in exchange for merger benefits, unfulfilled promises, and are pursuant to threats of increased charges, increased punishment, and increased jail time.

But the issue doesn’t solely rest with congress, who created this complex statutory scheme. It also rests with defense counsel.

The defense bar must utilize the law, the constitution, and leverage our rights to prevent the systemic injustices in the federal justice system. Every case has an angle -  in even the guiltiest defendants of cases there’s an opportunity to better their the defendant’s circumstances, to improve a defendant’s position and to hold the government to its burden. Finding this angle and seizing it promotes justice and fairness in the system, which. Our system of justice is improved with a talented, ethical, and diligent cadre of prosecutors ready to fight for justice on behalf of the people and an equally talented, funded, and diligent core of defense attorneys ready to leverage all of the power that the law provides to benefit their client.

Leveraging this great power requires resources, knowledge, experience and the ability to fight for what’s right, for each and every client, regardless of prejudices, biases, and pre-conceived notions of guilt. So we begin our journey with the most basic of concepts.

Understanding the federal justice system and its working parts so that in each case we encounter we can use experience and context to find every edge possible to assist those that find themselves on the wrong end of the federal government and its prosecutors.  

Federal Jurisdiction

On April 19, 1995, Timothy McVeigh drove a rental truck he filled with explosives to the front of the Alfred P. Murrah Federal Building, lit a fuse connected to explosives behind him, and then walked away.

At 9:02 a.m., with the workday just started and the first-floor daycare center filled with children, the truck bomb went off killing one hundred sixty-eight people. Eleven of these were federal agents.

77 minutes after the explosion an Oklahoma State Trooper stopped Timothy McVeigh for a traffic offense less than 80 miles from the blast and arrested him for unlawfully carrying a handgun. Within 48 hours the FBI had enough evidence to arrest McVeigh for the blast and, soon after, accomplices Terry Nichols and Michael Fortier. were arrested. All three were indicted for federal charges related to terrorism, murder and conspiracy. 

McVeigh and his accomplices committed Federal crimes including 18 U.S.C. § 2332 a conspiracy to use a weapon of mass destruction and 18 U.S.C. §1111 and 1114 first degree murder. These crimes are federal crimes and fall into the federal jurisdiction of the United States Court in the district in which the crime was committed, the Western District of Oklahoma. They also fell under the jurisdiction of the United States Attorney’s office in that same district.

There are 94 federal districts which are organized into 12 regional courts of appeals. Each federal district has a district court and a United States Attorney’s office. Both the United States attorney’s office and the Federal court have jurisdiction over crimes committed in that jurisdiction.

This concept is easy in theory but exceptions to this rule are complex in application.

While the question of jurisdiction in the Oklahoma City Bombing may seem open and shut – it was not. The fertilizer bomb packed by McVeigh and loaded into a rental truck was so powerful that the blast damaged the nearby federal courthouse that would have had jurisdiction over the offense. The blast sent powerful shockwaves into the courthouse and damaged the building, victimizing the judges and staff on its premises.

Thankfully, our justice system at least has the foresight to ensure that victims of a crime cannot also stand in judgment of it.   

This issue created a unique jurisdictional question for the court which took the courage of two Federal Judges to resolve. Get it wrong and the long painful trial endured by the victims and their families would have to be redone. Get it right and justice is served for the victims of the largest terrorist attack on United States soil. Judge Stephanie Seymour, of the U.S. Court of Appeals for the 10th Circuit, disqualified all of Oklahoma’s federal trial judges from the case and assigned the case to Judge Richard Matsch, a seasoned Nixon appointee, from presiding in Denver.

On a motion by the defense, Judge Matsch, over the objection of many of the victims and the prosecution, moved the trial to Denver to his own courtroom in order to ensure fairness and avoid the appearance of a judicial circus that the O.J. Simpson trial so recently left on the American public. Judge Matsch’s ruling was also fueled by the selling of bombing memorabilia including t-shirts in the courthouse in Oklahoma City, and was made worse by the repeated publication of a picture of McVeigh entering the courthouse with a bulletproof vest and handcuffs.

As a result of the brave decision by Judge Matsch to move the trials – the Oklahoma City bombing trials were the first federal trials ever broadcast over via live via video.

When all was said and done, McVeigh was sentenced to death and his accomplice McNichols received a life sentence[1].

The federal system of courts are courts of limited jurisdiction, meaning that access to the court is not a guarantee and a federal court may only hear cases authorized by the United States Constitution or federal statutes. A criminal case may be brought before a federal district court judge where a criminal violation of the United States Code is alleged. The United States Code is the compilation of laws passed by the legislature and signed by the president. Laws requiring punishment for their violation may include a civil, administrative, or criminal punishment. And sometimes all three.

Some criminal violations may implicate both state and federal crimes. In such cases, both the state and federal government may bring charges against the defendant in state and federal court. Such a practice does not violate the double jeopardy clause as, the federal government and state government are considered “separate sovereigns” under the double jeopardy clause. A defendant may be tried for the exact same crime in both state and federal court[i]. This doctrine is old but a challenge recently bubbled up to the Supreme Court in 2019.

In November 2015 Terance Gamble was pulled over in Mobile Alabama for a damaged headlight. After a search of the vehicle a handgun was found, which was illegal under both Alabama state and federal laws because he was a felon. Exact same gun. Exact same laws.

One would think this fits squarely into what the framers abhorred as successive punishment for the same crime. Mr. Gamble was convicted in Alabama and received a one-year prison sentence. Despite his conviction and punishment,  federal prosecutors elected to take a second bite at the apple to obtain a higher sentence and he was subsequently prosecuted under federal law in federal district court. The federal district court judge, following existing precedent, concluded that the double jeopardy clause did not apply to his case. Mr. Gamble plead guilty and received a much harsher 46-month sentence. He appealed to the 11th Circuit Court of Appeals making the same argument. After winning a moonshot audience before the Supreme Court of the United States he was shot down again in a 7-2 opinion authored by Justice Samuel Alito. Dual sovereign doctrine, 1 – Terance Gamble and the Constitution, 0.

Mr. Gamble was not without support: Two justices unlikely to share the same side of a Supreme Court opinion drafted separate dissenting opinions. The late Justice Ginsburg and newly minted Justice Gorsuch provided notable quotes in defense of the constitution. Ginsburg wrote, “different parts of the WHOLE United States should not be positioned to prosecute a defendant a second time for the same offense.””. Justice Gorsuch wrote, “when governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is the poor and the weak, and the unpopular and controversial, who suffer first -- - and there is nothing to stop them from being the last.””.

For now, the dual sovereign doctrine survives, and we can only hope that the Ginsburg and Gorsuch dissents age well over time.

The separate sovereign doctrine has a profound impact on the scope and breadth of federal prosecutor authority. Just as in Gamble, a defendant may face prosecution for the same offense if the conduct is both a violation of federal and state law. This is common where federal prosecutors believe they can net a higher sentence than their state counterparts in cases involving conspiracy, drugs, or guns, and it is an important consideration for defense counsel investigating their client’s range of alleged conduct and determining if the case will land in the hands of federal prosecutors, state prosecutors, or both.

The Federal Judiciary

Federal crimes are brought before federal courts staffed by federal judges. Federal judges, unlike their elected state court counterparts are appointed by the president, and confirmed for life. The backbone of the federal judiciary is its Article III district court judges.

Currently numbering 870 with nine on the Supreme Court, 179 on the courts of appeals, and 673 in spread out into individual federal districts, their numbers are small but their power is mighty. Some may think that to be qualified for one of the few lifetime appointments in the federal government the qualifications would be strict. Not so --, the framers treated the barrier to a federal judgeship as an afterthought, stating only that a judge should “exhibit good behavior.” The constitution provides broad parameters for the nomination process, – which is held by the president. The senate must confirm each nomination and generally does so after a thorough vetting process.

Some may find it frightening to believe that the keeper of the laws in federal district courts, appellate courts, and the Supreme Court need not have a law degree, be of a certain age, or possess a certain intelligence. Thankfully, the appointment process unenumerated in the constitution provides an appropriate check and balance to keep the federal judiciary free of harmful appointees. This vetting process for each appointment provides ample information, which means that molding a defense presentation to suit a judge is an easy case study.  

Counsel practicing in federal courts should take great efforts to know the judges who may ultimately decide their client’s fate through rulings on pre-trial motions, trial procedure and sentencing. And thankfully the vetting process provides us ample information to mold our presentation to suit the judge.

Let's take, for example, the vetting process of one of the most watched confirmation hearings of all time: – The confirmation of Justice Kavanaugh to the Supreme Court of the United States. What do we know about Judge Kavanaugh? Well, it turns out we know a whole bunch thanks to the Committee on the Judiciary[ii]. In a 110-page document,  Justice Kavanaugh provided a wealth of information about his background, education, qualifications, employment record, published articles, association memberships, and prior casework. Each district, appellate, and Supreme Court Judge fills out a similar document that you can use to better understand perhaps one of the most important figures in your case. From this we can pull transcripts of speeches, read published articles, and gain a better understanding of how to package the facts to suit our judge. President Trump may be interested to know, for instance, that Justice Kavanaugh wrote a letter to the editor of the Washington Post entitled “Indictment of an Ex-president.” Government lawyers seeking to enforce the mandatory victim’s restitution act may be interested in Justice Kavanaugh’s opinion in United States v. Papagno, where he reversed the decision of a district court that which relayed that a defendant must pay for the expenses of an internal investigation.

In federal cases, judges often write lengthy opinions on issues regarding the introduction of evidence and pre-trial procedure. They do this to inform the appellate court of their reasoning. When cases are appealed, they proceed to the Federal Appellate courts. There are twelve federal appellate courts, one for each of the 11 eleven circuits and one in the District of Columbia. When federal district court cases are appealed, they proceed to the appellate court for what is often a final decision on the case. The Supreme Court sits above the federal appellate courts but is an appellate court of limited jurisdiction. The Supreme Court typically receives between five and eight thousand petitions to review cases each year, called a petition for certiorari. Of those petitions only about 2 to 3% are granted each year, making the federal appellate courts the last stop for anyone challenging their conviction in federal court.

ABOUT THE AUTHOR

Ron Chapman has spent his career defending federal defendants in high-profile federal criminal cases. He is also the author of the Amazon best selling book Fight the Feds: Unraveling Federal Criminal Investigations. During his career he has learned that many federal defendants facing the power of the federal government lack resources and understanding of this complex field of law. The book and this companion website and guide were designed to close the informational gap between the federal government and federal criminal defendants by providing tactics and tips learned during my career fighting the federal government and its immense power. If you haven’t already, go to the beginning of this guide and review sections that are relevant to you and consider purchasing Fight the Feds to grow your knowledge of federal criminal law and investigations.