Homeless Person Federal Case.

Generally speaking, the Bail Reform Act (18 U.S.C. § 3142) favors pretrial release but permits detention when no condition or combination of conditions will reasonably assure the defendant’s appearance and the safety of any other person and the community. Under the Act, defendants are entitled to be released pretrial unless and until the court finds that detention is necessary to ensure the defendant’s appearance in court or to protect the community from future criminal activity (18 U.S.C. § 3142(b), (e)).

Although pretrial detention is not automatic, homeless defendants are at increased risk of pretrial detention and need to take strategic steps toward avoiding pretrial detention. Here is an overview of what homeless defendants can expect during the pretrial stage of their federal case:

1. The Detention Hearing

If the government pursues pretrial detention, the court will set a detention hearing. At the detention hearing, the court will hear arguments from both the prosecutor and the defense. When deciding whether to detain a defendant pretrial, judges must assess whether there is probable cause to believe that an offense was committed and that the defendant committed it, whether release conditions can reasonably assure the defendant’s appearance, and whether release would endanger the safety of any other person or the community.

While pretrial detention is not a given, it is at this stage that homeless defendants’ issues related to housing instability will come into play. The presumption in favor of pretrial release does not waive the defendant’s need to address these issues.

2. Release Conditions

If a judge determines that pretrial detention is not necessary, they can order the defendant released, either unconditionally or subject to certain release conditions (e.g., residential confinement, appearance at pre-set dates, supervision, etc.). Again, defendants’ issues related to homelessness can come into play here. While homelessness should not be treated as an automatic basis for pretrial detention, defendants will still need to work with their defense lawyers to establish stable contact methods for themselves and their lawyers and to identify any potential release conditions that may present unique challenges for homeless defendants.

3. Preparation and Defense

Homelessness can present unique hurdles for interacting with defense counsel, effectively and efficiently preparing a legal defense, and maintaining control of the case throughout the pretrial period. All defendants will need to work closely with their defense lawyers to address potential communication and preparation issues, and homeless defendants will need to work particularly closely with their lawyers to address the additional challenges they face.

How can an indigent federal defendant obtain counsel, and what might private representation cost?

How much does it cost to engage a federal criminal defense lawyer privately?

The cost of engaging a federal criminal defense lawyer privately varies widely from case to case. Determining the complexity, duration, and resources required to adequately defend a federal case requires prior experience in federal criminal litigation.

As this is a substantial legal matter, prospective clients should discuss fees and expenses with their defense lawyers before formally engaging them. Retainers, hourly rates, and flat fees are all options in private engagement agreements, and the agreement should identify a defendant’s hourly rate, retention fees, payment deadlines, and other financial obligations and consequences related to federal criminal defense.

How is a federal criminal defense lawyer chosen if a defendant is indigent?

If the defendant’s indigence has been established, then the court will either appoint a public defender to handle the case, or (if a public defender is not available) court-appointed private counsel will be provided. Because a defendant facing a federal criminal conviction and potential federal imprisonment is likely entitled to counsel under the Sixth Amendment, the government is legally required to provide a competent lawyer to represent the defendant free of charge if the defendant is unable to afford private counsel.

Ultimately, a judge makes this determination when assessing a defendant’s financial eligibility for appointed counsel, generally at the beginning of the federal case. Once appointed, the public defender or court-appointed private lawyer will represent the defendant at no cost for the duration of the case, with the same right and duty to defend the client as the lawyer the client would have hired if the client had sufficient funds for a private lawyer.

Spodek Law Group is a second generation New York firm. Todd Spodek practices out of the firm his father opened in 1976.

What do target letters and grand-jury subpoenas require before a federal arrest?

In some cases, a federal investigation can be concluded without anyone being indicted. However, in most cases, federal investigations can go on for months, or even years, before ending in indictment and subsequent arrest of a suspect. Federal criminal investigations can include:

• Intercepting telephone, computer, and other communications (e.g. surveillance, wiretaps)
• Monitoring a suspect’s communications and activities in the vicinity of homes, banks, social media sites, and the internet
• Sending subpoenas to phone companies, computer service providers, and other third parties
• Interviewing other federal law enforcement officials, confidential informants, grand jury witnesses, and other third parties
• Working with state, city, and other local law enforcement agencies and prosecution units
• Auditing the records of individuals, businesses, and organizations

As federal authorities’ investigations are in progress, suspects may become aware of their criminal liability through target letters and grand-jury subpoenas, as well as other methods such as search warrants and arrests of alleged accomplices. If you have received a target letter or a grand-jury subpoena in connection with a federal investigation, you should contact an experienced federal criminal defense lawyer to get guidance on your next steps.

A target letter serves to inform an individual that prosecutors are considering seeking a grand-jury indictment against the individual in federal district court. This is an opportunity to negotiate with the prosecutors to avoid charges, or to gain a clear understanding of the evidence and prepare for an indictment and potential arrest and pretrial detention.

A grand-jury subpoena may require a person to either:

• Appear in court and provide truthful testimony to a grand jury
• Produce specific records or other tangible evidence to a grand jury

The grand jury is the group of citizens that works with the government prosecutors to decide whether a federal indictment is warranted. It is up to the grand jury to decide whether to move forward with criminal charges, and not to decide whether the accused is guilty. Federal district court judges preside over criminal trials and sentencing hearings, while appellate judges preside over appeals.

Which Issues Can Shape a Federal Criminal Defense?

The first step for defending a federal case is to determine whether the crime is federal. Even if the criminal offense was investigated by federal law enforcement agencies and the arrest was executed by federal agents, this does not create jurisdiction.

For a federal criminal case to proceed, the crime needs to be a federal offense in the eyes of the federal justice system. This happens if there is a federal statute that creates the offense, if Congress has mandated enforcement of the particular state law in question, or if the federal government has jurisdiction over federal matters (e.g., federal property, federal agencies, etc.).

Although parallel state and federal investigations can proceed simultaneously with regard to overlapping criminal conduct, a defendant may be tried in both state court and federal district court. For defendants under investigation for an alleged crime, determining the federal versus state implications of the case is an essential step that can have serious implications.

While generally, the focus of the defense is to argue against a conviction at trial, at the pretrial stage, it is critical to attack the government’s methods. Allegedly unlawful searches and seized evidence can present substantive and procedural defenses; therefore, at the pretrial stage, defense attorneys often file motions to suppress such evidence. At a pretrial hearing, defendants can litigate whether a search warrant was issued in a legitimate manner and whether it was properly executed. If the warrant was not legally obtained or executed, then the case against the defendant could result in dismissal or require prosecution based on other evidence.

Federal prosecution for criminal behavior is a matter of the federal justice system, so a federal defense requires an experienced federal defense attorney who understands the federal case proceeding, federal rules of criminal procedure, and the relevant substantive and procedural defenses.

For example, if the crime was not a federal offense, a federal criminal lawyer can defend the case by arguing against a federal indictment. If the prosecution is based on unlawful methods, then, as noted above, a lawyer will litigate pre-trial to eliminate the evidence in question. And, for federal crimes that are constitutional offenses, criminal defense strategies are more complex. A federal criminal defense lawyer can work with a client to assess the allegations, the likely legal theories of federal prosecutors, and other factors that may affect the outcome of the case.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 888 348 8028.