A Practical Guide to Federal Prosecutors

If you stand accused of a federal crime, a representative of the US government will make two big decisions that could affect your future: 1) how to charge you, and 2) what to charge you with.

This blog post will provide basic information about who federal prosecutors are, how they relate to one another, what powers they have, and how they decide to take the kinds of action they do against criminal defendants like you.

First, we will look at the roles of three key players:

* United States Attorneys * Assistant U.S. Attorneys (AUSAs)
* Federal agencies
United States Attorneys

Top federal prosecutors are known as United States Attorneys. They are appointed by the President with the approval of Congress. In other words, it is a political appointment. In fact, the United States Senator from the majority party in power has the last say-so as to the President’s choice. This is a matter of protocol, but it is usually followed by the President.(The same selection process occurs with Federal Judges.) 93 United States Attorneys serve at any given time — one for each federal district.

Assistant United States Attorneys

Assistant United States Attorneys (AUSA’s) are hired by the U.S. Attorney. They are the ones who actually do the work. Rudy Gulianni made his career as a United States Attorney with a high-profile assault on the Mafia in New York. But his AUSA’s did all the work. AUSAs are heavily involved in doing things like:

* Calling witnesses before the Grand Jury * Issuing subpoenas for financial records * Utilizing a federal grand jury as an investigative tool for the prosecution.

Federal Agencies

Many Federal agencies investigate criminal cases. These include the FBI, DEA, Secret Service, Customs, and Border Patrol. Each agency has its own bureaucracy, and each has a different responsibility for investigating violations of the Federal Criminal Code. For instance, the FBI has general jurisdiction over most Federal Crimes as set forth in Title 18 United States Code. Secret Service, in addition to protection of the President, has investigatory authority over counterfeiting and forgery & passing of U.S. Treasury checks. The DEA has authority over federal drug offenses, although it shares responsibility with the FBI. Border Patrol & ICE (Customs Enforcement) share illegal immigration duties. AT&F handles firearms violations, while the Postal Inspectors investigate illegal activities concerning the U.S. mail.

Choosing Which Cases to Prosecute

At some point, a federal agent will involve an AUSA in an investigation — sometimes sooner, sometimes later. When a case is at the point where charges are ready to be brought, the case agent presents the case to an AUSA, who either authorizes or declines prosecution. In some cases, the AUSA gets involved earlier — for instance, when a drug buy is being set up. In other cases, the AUSA isn’t in it until he decides there is a case with merit (or there is not). Many cases are declined at the presentation level. Often, the AUSA sends the agent back to do more work.

In larger drug conspiracy cases, the AUSA works closely with the DEA/FBI and makes the call on search issues, etc. In some cases, like white collar crimes, a Federal Grand Jury aids the investigation.

Charging the Crime

The AUSA chooses how to charge the case: what violations of the Federal Criminal Code, how many “counts” should be in the indictment, and so forth. These choices can have a profound impact on you — particularly on how much prison time you might face. For instance:

* one count could have a mandatory minimum of 10 years * another count could have a 5 year minimum * yet another could have a maximum of 5 years and no minimum
Congress sets the statutory minimums. But the AUSA chooses what to charge.

Perhaps most importantly, the AUSA has discretion as to which counts to allow the Defendant to plead to. The rest is up to the Federal Sentencing Guidelines. Keep in mind, also, that all AUSA’s answer to a higher power: their own bosses up the chain of command.

Factors That Can Influence How a Prosecutor Might Charge You

These include: the nature and quality of the evidence the government has assembled against you; the severity of the crime you allegedly committed; whether you worked in collaboration with others (a so-called “conspiracy”); whether you have a prior criminal record — and, if so, what exactly did you get convicted of; whether you may have committed additional crimes for which you were not convicted.

Prosecutors can be influenced by things like politics, department resources and even personal philosophies and biases. In short, dozens of factors go into determining whether a prosecutor will charge you — and, if so, what punishments he/she will seek.

Given the dynamic, hard to predict nature of federal cases, it behooves defendants to retain a top caliber lawyer. A board certified criminal defense attorney can push back against charges and help you develop a strategy to get maximum results.

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