Federal Prosecutions

This week let me focus on specifically federal prosecutions, as that is the focus of my practice and an area unfamiliar to most people.
Starting with, “Once upon a time” federal cases were reserved for the most serious violations of law with far reaching implications. The celebrated FBI “Ten Most Wanted” list with names like Capone, Gotti or Bulger. Cases involving counterfeiting of U.S. Currency. Cases which involved espionage, such as that depicted in the Tom Hanks film, “Bridge of Spies”. The Cali or Medellin drug cartels all conjure images of federal investigations and prosecutions. But how do these cases get started?

Unlike the majority of state cases, which are discovered in process and arrests made immediately. Or where there is an offense, say a murder or burglary and a brief investigation results in arrest of the defendant. Federal cases tend to be more deliberative, though not always.

The initiation of a federal prosecution can be a coordinated effort between the law enforcement agency (FBI, DEA, HSI etc.) and the Office of the United States Attorney. Specifically, an Assistant United States Attorney (AUSA) will coordinate with the case agent. The case agent is the lead investigator on the case which may have multiple other agents or even multiple agencies. Federal investigations may easily take months or in some cases years to bring to the point of being ready to file charges or colloquially prosecute.

During that investigatory time many things may be happening. There is usually some sort of surveillance of specific locations, especially in major drug cases. Often this surveillance is conducted by placing clandestine cameras in locations which give direct view of the subject home or business. Small and unobtrusive these cameras run 24 hours a day. Sometimes physical surveillance is conducted by aircraft, either helicopters or airplanes which are specially equipped to record visual and/or audio. In the case of such aircraft they also are able to use thermal imaging and detect heat signatures of vehicles recently driven or persons walking outdoors. There is debate as to whether the aircraft employ “Stingray” devices to ping or spoof cell phones, this is routinely denied. However, it is also known that certain agreements require the denial of such use as was discovered in a district court case in the District of Columbia.

Another frequently used investigation tool is referred to simply as a Title 3. In federal criminal prosecutions that refers to the interception of telephone calls by government agents. Without getting into the mechanics of obtaining the authorization, a federal court grants a warrant to make the interceptions. Once the warrant is obtained the target telephone number is then recorded every time it is used to have a conversation. The content of the calls is then divided into relevant or non-relevant, that is, talk which is pertinent to the investigation and that which is not. Such recordings can run into the hundreds of hours before a case is ever filed.

During this investigatory period, however long it may take, the government is amassing evidence and making records of the investigation for later use. Sometimes these are FBI 302s or DEA 6s which are reports of investigation and may contain a variety of information.
The government may “recruit” persons to assist in the investigation through arrests and “cooperation agreements” with the arresting agency. These generally need to be approved by the AUSA to have value later in the prosecution of that individual. Getting into such issues as government agent authority to make deals, promises and assurances is a topic for later.

So, for now, remember they are your rights, use them or lose them. Every encounter with law enforcement has the potential for arrest, be polite be courteous but be aware. Exercise your Constitutional rights to remain silent and to have counsel present.