Federal Crimes FAQ

What is a federal grand jury "target letter"?

Can the grand jury indict me without notice and counsel?

What is witness tampering?

What is a "departure" under the federal sentencing guidelines?

What is "sentencing entrapment"?

Can a foreign jail sentence be served in the United States?

How do federal parole and "good time served" credit work?

Who can help me get my money back from the FBI?

Q: What is a federal grand jury "target letter"? Why and when would a target of the federal grand jury receive one? Does this mean that a person who receives such a letter is likely to get indicted?

A: Federal grand juries conduct investigations into possible violations of federal criminal law. They have the power to subpoena witnesses to appear before them to testify and produce information.

The Department of Justice has special policies when the subpoenaed person is either a "target" or a "subject" of the grand jury investigation. A "target" is someone the prosecutor or grand jury has substantial evidence to link to a crime, and who, in the judgment of the prosecutor, is likely to be indicted. A "subject" of a grand jury investigation is someone whose conduct is within the scope of the grand jury's investigation.

Due to the potential for unfairness and misunderstanding in making a person who is likely to be indicted testify or produce documents before a grand jury, prosecutors must first attempt to get the target to voluntarily appear. If that doesn't work, the prosecutor must get the approval of the grand jury and the United States Attorney or the responsible Assistant Attorney General in order to issue a subpoena.

In deciding whether to subpoena a target, prosecutors will consider the importance of the testimony or information sought, whether the prosecutor can get the testimony or information from other witnesses, and whether the answers to the questions the prosecutors and grand jurors intend to ask would be privileged.

If the target of a grand jury investigation is subpoenaed, it's the policy of the Department of Justice to advise the witness of his or her rights, either by attaching an "advice of rights" form to the subpoena or in a letter than accompanies the subpoena. In the case of a witness who's the target or subject of the investigation, the following advice is provided: "The grand jury is conducting an investigation of possible violations of Federal criminal laws involving: [the general subject matter of inquiry, for example "conducting an illegal gambling business in violation of 18 U.S.C. Section 1955"]. You may refuse to answer any question if a truthful answer to the question would tend to incriminate you. Anything that you do say may be used against you by the grand jury or in a subsequent legal proceeding. If you have retained counsel, the grand jury will permit you a reasonable opportunity to step outside the grand jury room to consult with counsel if you so desire."

Targets are also advised that their conduct is being investigated for possible violation of federal criminal law.

Q: Does anyone have to tell you at a grand jury hearing that you're being indicted? Is it legal to indict a person without their knowledge or representation?

A: There isn't a requirement that you be advised ahead of time that an indictment is going to be returned against you. Grand jury proceedings are considered secret. In general terms, this means that the authorities aren't allowed to reveal what happens before a grand jury.

If you're a "target" (loosely defined as a person against whom the government has evidence of an involvement in a crime for which you may be charged) or a subject of a grand jury investigation, the government may want to question you about your involvement in the crime under investigation. In that case, the United States Attorney's Manual requires federal prosecutors to advise you in writing of your right to counsel and to use your privilege not to incriminate yourself if you so choose.

If you think you're the target or subject of a grand jury investigation, you might consider getting a lawyer to open communications with the prosecutor. Sometimes the prosecutor will confirm her intention to indict you, engage in plea negotiations before the indictment, or agree to surrender instead of arrest when the indictment is returned. Other times, the prosecutor will request that the indictment be sealed by the court until your arrest, to reduce the chance you'll flee to avoid prosecution.

A criminal indictment is a serious matter, so looking for a lawyer at the earliest opportunity is a good idea. Lawyers.com has a free service called "Find a Lawyer" that can help you find a lawyer in any city or state in the United States.

Q: What is witness tampering?

A: It's a federal crime to tamper with a witness, victim or an informant. Witness tampering can include harassing, intimidating or making threats to a witness to prevent them from providing testimony or documents, or from attending a trial or other proceeding. It includes killing or attempting to kill a person who might give information or documents to federal officials. Witness tampering can be misleading conduct, such as hiding a witness from authorities to prevent testimony at trial, or making false statements to convince another person to lie. Attempts to silence a witness through cajoling or bribing them are also considered witness tampering. So is instructing someone not to cooperate with a government investigation and denying involvement in illegal activity.

Penalties under the federal witness tampering statute range from up to one year for less serious violations, to life imprisonment or the death penalty for a killing.

Q: My daughter has been charged with a federal drug crime for transporting marijuana. Her lawyer says if she is found guilty, she'll be sentenced to a long prison term according to federal guidelines, unless she gets a "departure." What is a departure and how can she get it?

A: All persons convicted of committing a federal crime after November 1, 1987 are sentenced according to federal sentencing guidelines. Each crime is assigned a specific "offense level" between one and 43, with one being the lowest. The probation department assigns every person convicted of a crime a "criminal history" category, between one and six, depending on their prior criminal record, with one being the least severe. After conviction, the probation department combines these scores to compute the person's sentencing guideline range in terms of a number of months, between 0 and 360 months, or life, and prepares a report advising the court of its findings. The prosecution and defense are given a copy of the report and allowed to object and request a departure from the specified guideline range.

There are two kinds of "downward departures." The first commonly occurs when the defendant substantially assists the government in the investigation or prosecution of another person. Only the prosecutor can make a request for this departure. If granted, the judge can depart downward to any sentence he or she thinks is appropriate, including probation. Other grounds for downward departure include where the defendant suffers from diminished mental capacity or committed a crime under circumstances amounting to coercion or duress.

The second kind of "downward departure" allows a judge to depart from the guidelines and impose a lower sentence if the court finds circumstances that the Sentencing Commission didn't take into consideration when formulating the guidelines. Examples include the existence of extraordinary family circumstances which would result in severe hardship if the defendant is imprisoned for the guideline term or where the offense was an "aberrant" act in an otherwise unblemished life.

Q: Can you tell me about "sentencing entrapment" in the federal court system?

A: Sentences in the federal system are determined by the Federal Sentencing Guidelines. In drug cases, the sentence is largely determined by the amount of drugs involved. In fraud cases, it's largely determined by the dollar amount of the fraud. In weapons cases, the number of weapons involved in the offense often determines the sentence.

Often, police and agents engage in illegal activity with a suspect. They may pose as purchasers of drugs, or set up a phony money laundering operation. They may also manipulate the amount of drugs, currency, or weapons, so that a suspect will receive a greater sentence after being charged and convicted.

Sentencing entrapment has been described as "outrageous official conduct which overcomes the will of an individual predisposed only to dealing small quantities for the purpose of increasing the amount of drugs" and the resulting sentence imposed on a defendant.

Some courts have ruled that if a defendant can prove that the government manipulated the dollar amount of the drugs to increase his sentence, there is a fairness argument against a higher sentence.

Sentencing entrapment isn't a defense to the crime itself.

While some courts have recognized sentencing entrapment and used it to reduce sentences, other courts have either refused to recognize such claims or have not yet addressed them.

If you think you have a claim of sentencing entrapment, you should raise this with your lawyer. He or she can advise you if such a claim is recognized where you live and if the facts of your case support it. Lawyers.com has a free service called "Find a Lawyer" that can help you find a lawyer in any city or state in the United States.

Q: My nephew was sent to jail in Mexico after being convicted of buying marijuana. Is there any way for him to serve his jail time in the United States?

A: Yes. The International Prisoner Transfer Program began in 1977 to allow the transfer of prisoners from countries in which they've been convicted to their home countries. The program is designed to relieve some of the special hardships that fall on offenders jailed far from home, and to speed their rehabilitation. Foreign nationals convicted of a crime in the United States and United States citizens or nationals convicted of a crime in a foreign country may apply for a prisoner transfer to their home country if a treaty providing for such a transfer is in force between the United State and the foreign country involved.

The United States has 12 prisoner transfer treaties in force with Bolivia, Canada, France, Hong Kong S.A.R., Marshall Islands, Mexico, Micronesia, Palau, Panama, Peru, Thailand, and Turkey. In addition, the United States is a party to the Council of Europe Convention on the Transfer of Sentenced Persons ("COE Convention"). A full list of participating countries is available at http://www.usdoj.gov/criminal/oeo/lists.htm.

The consent of the United States government, the foreign government, and the prisoner is required for each transfer. It's not necessary for prisoners who are applying for transfer to be represented by an attorney, and (according to the Department of Justice) most applicants aren't represented by an attorney.

Families can write to the International Prisoner Transfer Unit. Letters may be addressed to: The International Prisoner Transfer Unit, Office of Enforcement Operations Criminal Division, United States Department of Justice, P. O. Box 7600, Ben Franklin Station, Washington, D.C. 20044-7600.

Q: Is there federal parole? How many days of "good time served" credit can you get in federal prison?

A: With the enactment of the United States Federal Sentencing Guidelines in 1987, parole was discontinued for all federal offenses committed after November 1, 1987. Instead of parole, federal offenders receive "good time." The maximum allowable good time is 54 days per year. This means that federal prisoners now serve 85 percent of their sentences.

Federal sentences are imposed in terms of months, not years. For sentences of 12 months or less, there is no good time and the entire term of the sentence must be served. For sentences of 12 months and one day or longer, the 54 days of good time kicks in after the offender has served a full year. For longer sentences, the sentence is reduced by another 54 days every time the prisoner serves another year.

Q: What kind of lawyer do I need to get my money back from the FBI? They took it from me thinking it was drug money.

A: You should look for an attorney who's experienced in defending federal assets forfeiture cases and criminal drug cases.

Under the federal assets forfeiture and drug laws, the government can seize and keep currency that was either used in connection with a drug transaction or which constitutes "proceeds" from a drug transaction. An example of "proceeds" is profits.

The government will mail you a notice of its intent to keep your money. Since you'll only have a limited time to file a claim for the money to contest the seizure in court, or to file a petition with the government asking them to return your money and stating your reasons for why the money should be returned, be sure to seek out legal counsel as soon as possible to help you decide which route is best for you.

Contesting the seizure in court will likely take longer, but it also means that a judge, instead of the agency seizing the money, will decide your right to the money.

Recently a new federal forfeiture law was passed containing numerous reforms in favor of the person whose property was seized. For example, the new law makes the government come up with more proof that your money was either used in a drug transaction or that it constitutes profit from one. The new law also allows you to get a lawyer at no cost if you can't afford a lawyer to contest the seizure, allows for the release of seized property pending a final decision by the court in certain hardship cases and eliminates the need for you to post a bond to claim the property.

Your lawyer can help you figure out whether the FBI unlawfully seized your money to begin with and whether you have any other defenses to the seizure. Since these are highly technical legal issues, you're best off getting a lawyer who's familiar with both federal criminal drug law and civil asset forfeiture law. Lawyers.com have a free service called "Find a Lawyer" that can help you find a qualified lawyer in any city or state in the United States.