Central Violations Bureau ("CVB")

(CVB) handles those petty offenses (as defined under 18 USC 19) that occur on federal property, such as federal buildings, national parks, military bases, post offices, Veteran Affairs centers, Social Security Administration Offices, local national forests, and any other areas that are patrolled or under the jurisdiction of the federal government.

Where all of the federal tickets are handled.

CVB offenses are governed by 18 U.S.C. section 19. This statute specifically states that petty offenses include Class B misdemeanors, Class C misdemeanors, and infractions.

We will also see Class A misdemeanors on the CVB docket. Here is a breakdown of the particulars for each type of citation:

Infractions:

These are offenses for which the maximum sentence is a 5-day jail term, a fine of up to $5,000, one year of probation, a $5 special assessment and a $25 CVB processing fee.

The most important resource you should know is your Federal Rules of Criminal Procedure. These rules govern everything from the initial appearance to the discovery production, to the preparation of the PSR. Reading these from beginning to end can give you a good roadmap for handling your case.

Most attorneys that focus on federal cases divide their fees by pre-trial and trial.

People tend to accept the fact that the rate for hiring an attorney in federal court is insanely high, it's the going rate, and that's the market.

Molly wouldn't handle a misdemeanor case short of trial for less than $5,000.

Typically she charges a flat rate, but she shares that when you break it down to an hourly rate it's just a lot of time and work.

One of the things that make this such a great opportunity for lawyers is that there just isn't a lot of competition. The amount of lawyers willing to take on federal misdemeanors is few and far between because it can be a very intimidating world and not all lawyers are comfortable.

The reason many lawyers aren't comfortable is that they are not prepared to ask for the fees that you will need to support the amount of effort these cases can take.

Having a working knowledge of how to evaluate how much work a case will take will coom with experience, but there are certain general things you can look for.

For instance, if you're dealing with a low-level collateral forfeiture case or something you can resolve at the initial appearance, it's common to charge a couple of thousand dollars.

If you're dealing with a Class A misdemeanor, a trial, or a case that's going to involve the pre-sentencing report, it's common to charge anywhere from $5,000 to $10,000.

Structuring Your Fees

You can also structure your fees by separating the pre-trial fee from the trial fee. If your client is not sure they are going to trial, you can charge a pre-trial fee that ranges from $2,000 to $5,000.

But it's important to communicate that if you go to trial there will be an additional fee that commonly ranges from $2,000 to $5,000.

Explain to your client that this does not include expert costs or fines/fees if imposed.

What are they paying for?

It's important to keep in mind all of the elements that are calculated into your fees. Not only is it difficult to find a lawyer who is skilled and knowledgeable in federal court, but it involves a lot of both mental and emotional work.

Practicing at the federal level is highly academic and will require a lot of research to properly prepare for each case. Additionally, a good federal defense attorney will provide emotional support for their clients through this very intimidating process.

So, essentially, they are paying for someone who will not only answer all of their legal questions but also someone who will ease their fears and anxiety caused by the process.

One of the key things to keep in mind regarding the culture of federal court is that it is a very small world. You should enter with respect and show up with humility.

One of the biggest faux pas those new to federal court might make is coming in too aggressively or like they know everything. A big attitude combined with a lack of know-how in the federal world can earn you a bad reputation very quickly.

Additionally, In the federal world, attorneys tend to be more academic and intellectual in their approach, rather than dramatic or emotional. It's very important to know the law well.

Learning the language and the customs of federal court

While many opportunities exist for entering this arena, it can be a detriment to your client if you don't have a clear understanding of the processes, customs, and language of a federal courtroom.

Lawyers can easily get blindsided by the tempo, rhythm, and the expectations of the federal court because they are completely different in many instances than what they will see in a state court.

Addressing the obstacles in the learning process

A lot of the trickiness is not just nailing the law and nailing the rules. It's nailing all of this other tacit knowledge that insiders have. But if you haven't had a mentor who could walk you through all these stages, you're really not going to pick up on that knowledge without learning as you go, which is so painful.

Another obstacle to consider is if you're not going to show up to federal court on a regular basis, it's harder to invest in learning.

What's great about this course is it gives you the tools that you need to be able to go and market to that audience where you can show up on these federal misdemeanor calendars on a regular basis.

The basics of the case

The challenges of the case

Background Insight

The Charges

The Approach

The Defense

The Results

For the most part, people are not arrested immediately for misdemeanors. Similar to the state system, an officer has the discretion to make an arrest or not at the time the citation is issued.

In most cases, the client receives a citation with a court date on it. If they are arrested, they are released with a citation that serves as a summons.

In this case, because they decided to go to trial and because it switched hands, the government went through the whole rigmarole of indicting.

While in some situations, like this case, the government may want to go ahead and formally indict and start the process over again, most of the time, you're litigating based off of a ticket and you can take that all the way to your federal circuit court for appeal, and to the US Supreme Court via a writ of certiorari.

In this case, the client received a ticket and was given a court date. Usually, there's about a four-month span between arrest and the initial appearance.

Usually, the cases that you're going to litigate, you go to the first court date (typically referred to as an initial appearance) that's on the citation. There, you will typically request another court date if the client does not want to resolve the case at that point. At your second court date (essentially a status conference) you and your client may be the only ones on the calendar. Most hearings in federal court are done by appointment — you don't have long calendars and multiple people on a docket appearing before the same judge at the same time.

What to expect

The arraignment is considered an initial appearance where you can resolve the matter if you want, but you don't have to formally enter a not guilty plea.

Molly shares how it's kind of the "only cattle call we have in federal court. It's a fairly crowded courtroom."

Pro-Tip

As a defense attorney, you should look on the ticket for the courtroom number. Then, search that courtroom number to find out what judge is assigned to the case. You can then contact the US Attorney's office and find out if they've assigned the Assistant US Attorney who is going to handle that particular judge's misdemeanor/CVB calendar. Oftentimes, they have a schedule going and they can connect you with someone who is going to be assigned to your case.

Meeting the prosecutor + Making a deal

Often, the prosecutor isn't going to think about the case until the initial appearance because they have other cases they're working on and this is low-level stuff for them. But you can meet them for the first time at the first hearing and try to work out a good deal at that time. They will conduct pretrial conferences with anyone who would like to have one.

What are those preliminary documents that we should show up with?

When you're handling citations, there's not going to be an opportunity for you to file the entry appearance because the case is probably not even on the docket in PACER.

So you just show up to that very first initial appearance.

Sometimes the prosecutor will have your discovery for you.

Molly shares that she did not get discovery at the initial appearance for the sexual assault case. So both Molly and the prosecutor asked for more time to get discovery and allow her time to talk to her client.

Talking with the prosecutor

Asking for more time is a case by case situation. But you should speak with the prosecutor, see if there's an outstanding discovery, and see what they're thinking in terms of a resolution.

Oftentimes, they will propose a later date so they can look at the case further, speak with witnesses, and talk to the victim. Then they will get in touch to see if they can resolve it by the next appearance.

The Courtroom Deputy Clerk

The Courtroom Deputy Clerk is responsible for managing the judge's calendar. You need to speak with them to set a new date or the judge's expectations.

Getting on PACER

If you plan on filing motions or you want to go ahead and get things on a docket online, speak with the Courtroom Deputy Clerk about their practice of getting the case on PACER.

This is not something they always do automatically, so be sure to discuss it with them.

How much time?

If you just need to negotiate with the prosecutor or talk to your client in a less chaotic environment, you might only ask for a month. But, if it's a case where you anticipate filing motions and going back and forth with the prosecutor at a more extensive level, you might ask for two months. However, usually, a month is the culture.

Time to file motions under the Federal Criminal Rules of Procedure

When you're operating under an indictment, which again is case by case, then the clock formally starts at your arraignment and you technically have 14 days after that to file motions.

But when you're operating within this kind of strange, nebulous, informal CVB land (and your client is never formally charged in an indictment) you have a little bit more leeway. Though you don't want to come back and not have done anything when you have that second appearance.

Pro-Tip: Don't be casual about getting a reset

I think one of the warnings for my practice area would be don't be casual getting a reset. If you say you're going to get medical records, you better show up with medical records.

When you go to court and you say, I'm going to do something, you basically go back to your office and you do it. You don't put that on your to-do list for the next three weeks to try to get around to doing. Everybody else who's part of this is taking it very seriously and signing documents and filing briefs very, very quickly.

Your biggest job in the preliminary stages

In those preliminary stages, your biggest job is to make sure you're showing up and doing what you tell the court you're going to do. But, you don't have any deadlines or anything to track or worry about until that indictment, the red flag that indicates the clock is running and you need to be paying attention to the time.

The motions practice

In federal court, it's very different motions practice. You would file your motions and then you come back to court but you don't have a hearing right then. You have a scheduling conference to discuss deadlines, called a pre-trial conference.

Sometimes the court will do this telephonically, but often it's in person and your client doesn't have to show up. It's just for the attorneys to look at the filings (the defense motions) and set a schedule for a briefing or for an evidentiary hearing.

Then the court decides if you're going to get an evidentiary hearing.

If you are having an evidentiary hearing, typically they inform you that you will get a transcript and — depending on what you've alleged in your motions — you may have the opening brief and the burden. You will also have to pay for the transcript. A two to three hour hearing is roughly $400 or so.

Typically, you will have 28 days from the moment that transcript drops to file your brief, the government has 14 days to file a response, and the defense has seven days to file a reply.

When do you find out if you get an evidentiary hearing?

As a defense attorney, you want to get that evidentiary hearing. You want to get somebody on the stand, you want to get that transcript, you want to get some impeachment material.

So part of the strategy in filing motions is to hope that when you come back for that pre-trial conference and scheduling meeting, the judge says, let's set an evidentiary hearing a couple of weeks from now, and we'll have it all transcribed and then litigate.

In this case, we actually switched judges, because originally, the prosecutor had charged us with a grade A misdemeanor, which meant that we were entitled to a district judge and jury.

But then they dismissed all of those charges. And it ended up being just a Class B misdemeanor; the simple assault and simple battery. Which meant we were back in front of the magistrate judge, and we didn't get a jury.

On this docket, there were some motions that were deferred, but ultimately, they were all heard by the same judge because we were not going to try the case in front of a district judge.

Important Considerations

a. Waiving Your Rights to a District Judge

This case was very different because it changed hands.

Typically, you have one prosecutor, the same prosecutor, that you're dealing with at the initial appearance on a ticket. And you're not dealing with bonds because, typically, the client does not get arrested, just cited.

In this case, when it changed hands and went to a new prosecutor, she made the decision to indict it. At that point, procedurally, we were in a whole new world.

The prosecutor knew that the defense wanted to try the case, so she formally charged it, triggering a whole different initial appearance. And all of this happened months after the defendant received the citation.

Addressing Bond

Usually, for the most part, there's not a bond issue. Your client receives a citation and they litigate their citation. That's it.

Even if you've been arrested, usually, you get a standard bond posted after you go to a municipal jail or a county jail for a couple of nights. Then you get out, are issued your citation, and have a court date. And that's when you meet the federal defender or you bring in your hired counsel.

One thing that's expected at the initial appearance when a case has been formally indicted is to address bond.

In this case, addressing bond was "Judge, he's been out for close to a year. He was given a ticket. The only reason we indicted it is so that we can have this on Pacer and litigate it. And it's going to be a trial."

The government has a decision whether or not to even ask for the client to be detained. In this case, they didn't move for detention. But it's still something that will come up if you have an indictment and you have that initial appearance.

What's covered at an initial appearance when your client is indicted

The initial appearance is to advise you of your rights, to address bond, to enter a not guilty plea, and then set a schedule to file motions (14 days).

Types of bonds

For the most part when it comes to bond in the federal system, we almost exclusively do the unsecured bonds. Very rarely have I had a client that had to put up cash, surety, or property.

Notifying your client of conditions of bail

If it is the initial appearance follows an indictment, you address bond. You and your client sign a series of documents that notify your client of the consequences of not following the conditions of his bail and also lay out all terms of the bond. The client is then expected to review these terms with a pretrial services officer.

Contacting the US Marshals

If you know that your client is going to be indicted and hasn't been arrested before, they may have to go through the process of being arrested and booked. You can contact the US Marshals to get your client formally booked and fingerprinted at the courthouse before you walk into your hearing.

If you're arguing for a bond, the Marshals often process your client and take your client's fingerprints to see if you have any outstanding warrants running through the system.

Filing for an extension

Filing for an extension is a fairly common practice. To file for an extension, you will typically discuss it with opposing counsel and then file a motion with the court asking for the extension. If the prosecutor does not oppose the request, it is an "unopposed motion for extension." If it's granted, you have a new deadline.

Without an extension, you have 14 days from your client's initial appearance to get all of your pre-trial motions filed.

Chance of getting an extension denied

While other jurisdictions might keep tighter deadlines, in the Northern District of Georgia, it is rare to see a motion denied. Also, the prosecutors usually consent to these motions and they are filed as unopposed. You also want to include a proposed order for the judge to sign, as well. PACER allows you to file the proposed order as an attachment.

The culture

After you ask the prosecutor if they oppose an extension, they will ask you to include language about the speedy trial clock in your motion/order to avoid a motion to dismiss for speedy trial violations.

This language is sufficient (for an order): IT IS HEREBY ORDERED that any delay occurring in extending the motions deadline and the holding of the pretrial conference shall be excludable pursuant to the Speedy Trial Act, 18 U.S.C. § 3161(h)(7)(A) and (B)(iv).

What are the limits for a speedy trial?

Technically it's 70 days from indictment to trial (see 18 U.S.C. 3161(c)(1)).

From the time of a complaint (a charging document that alleges an offense, but has not been presented to a grand jury) to an indictment, it's a real tight 30 days. The prosecution has to present the case and have an indictment in 30 days from the time the client enters their not guilty plea to the complaint. There are times when the prosecutor may reach out and negotiate an extension to indict, but only when your client is out on bond. If your client is in custody, you can file a motion to dismiss for a violation of speedy trial under 18 U.S.C. 3161.

Some judges prefer to do their pre-trial conferences and address other issues over the phone, via a teleconference.

Their deputy clerk will reach out to you and provide the number to call and the scheduled time. Once you call and opposing counsel is ready, the deputy clerk will get the judge and let you know that the call is being recorded.

These teleconferences are limited to meetings that do not require the defendant to be present (like the scheduling pretrial conference or another discussion that does not require your client's participation).

Pro-Tip: It's important to be fully prepared at the phone conference. Have the docket and your research available and prepare your argument ahead of time.

Pro-Tip: This is a formal conversation. Don't be too casual. It is being recorded and transcribed, even though it is just a phone call.

Prosecution can be very interchangable.

In this case, because it was a misdemeanor, we were dealing with a new, inexperienced prosecutor. And because this case took some time to matriculate through the system, it took enough time where the former prosecutor moved on and there was a new prosecutor assigned to the case.

There is a chance you will deal with more than one prosecutor in any given case. However, some cases that are pretty quick might just deal with the same US Attorney from that initial appearance to the time it's resolved (especially if you are just negotiating a collateral forfeiture or something straight forward like that).

You will get an initial trial date pretty quickly after the Report and Recommendation (R&R) is filed.

Notice of hearing for pre-trial conferences

Pro Tip: Cases in federal court are quickly set for trial once all pretrial issues are resolved. If you want to move to continue, talk to opposing counsel and file a motion. Continuances are often granted, but you should expect an initial date as soon as the R&R hits the docket.

In this case, we experienced more of a delay in getting certified for trial because ultimately my client, strategically, as advised by me, decided to waive his right to appear in front of a federal district judge and allow his trial to be in front of a federal magistrate judge.

We looked at our two judges and my client felt more comfortable with the magistrate judge and made a decision that he was going to waive his right to go in front of a district judge.

So at that point, once we have that notice set, and the district judge was expecting us to go to trial, I needed to go ahead and submit a waiver so that the district judge no longer expected us to be in court and try this case in front of him.

So we submit our waiver to the magistrate judge, who then advises the client of his right to be heard in front of a district judge.

Changing the Timeline

Once the client waives his rights and we know we're going to go in front of the magistrate judge, the old timeline and trial date do not apply. This magistrate judge is now going to set his own trial date.

Pro Tip: You want to get intel and make a really informed decision about which judge will be a better audience for your trial, if you have a choice and can execute a waiver.

Pro Tip: The government cannot oppose the waiver of rights. It is your client's right and decision.

In federal court, only Class A misdemeanors give you a jury. Class B and Class C misdemeanors do not get a jury. Instead, they have a bench trial.

In this case, the prosecutor dismissed the Class A misdemeanors and proceeded with Class B, thereby eviscerating the client's right to a jury.

After the sexual assault and sexual battery charges were dismissed and the client was just left with a simple assault and simple battery indictment, the battle started getting pretty intense.

First, there was a lot of back and forth over whether or not Molly would be allowed to present evidence of diminished capacity based on the defense of voluntary intoxication. The government's contention was that this was a strict liability offense — they only wanted to focus on whether or not the defendant touched the nurse's butt.

Molly wanted to bring in an expert to talk about midazolam, the drug that was used on her client. And the government wanted an expert who was from the same hospital where the crime allegedly occurred. The expert was also the same person who handed over the HIPAA records without consent.

The battle of the experts was one issue that was left unresolved before trial. There was an intense fight over the witnesses and who was going to be a permissible expert in this case.

Molly shares that everything is a battle in federal court and "if there's an angle you can fight, you fight it out."

The magistrate judge held a hearing to make his final rulings as to evidence, testimony, and experts.

Paying for the experts

Based on the charge, the client is usually responsible for paying for an expert when they've hired private counsel. However, in the public defender's office, there is funding for paying experts.

These experts can be very expensive and it's a cost you should include in your fee and your contract. If your case requires an expert, be sure to reach out to them ahead of time with a retention letter to determine their hourly rate and create an agreement.

Additionally, some indigent clients may qualify for federal funding of an expert as part of the Criminal Justice Act. Defense would need to file a motion to the judge who would make the decision to grant or deny the request. This is typically done by Criminal Justice Act ("CJA") or "panel" attorneys, who take on appointed conflict cases in federal court.

Questioning government expert

Whenever you're presented with a government's expert, you're going to get their report and CV ahead of time. However, you still want to file a motion to voir dire that witness and make some sort of argument to the court that they shouldn't be able to testify.

The trial judge will then allow you the opportunity to cross-examine them on their credentials and you would be able to make your argument.

In this case, Molly felt that there was an issue in terms of bias because the government's witness worked at the location where the alleged incident occurred.

Pro-Tip: If you don't think your client can afford the significant expense of hiring an expert, you should consider referring them to the public defender. The federal defenders are well-funded and use experts in any case that needs them. A client who needs a lot of expert testimony may be better off being represented by an office who can handle these extraneous costs.

Pro-Tip: Always litigate the experts. The other side is going to do the same.

Pro-Tip: Anything that you want to challenge, put it in writing and preserve it.

After the sexual assault and sexual battery charges were dismissed and the client was just left with a simple assault and simple battery indictment, the battle started getting pretty intense.

First, there was a lot of back and forth over whether or not Molly would be allowed to present evidence of diminished capacity based on the defense of voluntary intoxication. The government's contention was that this was a strict liability offense — they only wanted to focus on whether or not the defendant touched the nurse's butt.

Molly wanted to bring in an expert to talk about midazolam, the drug that was used on her client. And the government wanted an expert who was from the same hospital where the crime allegedly occurred. The expert was also the same person who handed over the HIPAA records without consent.

The battle of the experts was one issue that was left unresolved before trial. There was an intense fight over the witnesses and who was going to be a permissible expert in this case.

Molly shares that everything is a battle in federal court and "if there's an angle you can fight, you fight it out."

The magistrate judge held a hearing to make his final rulings as to evidence, testimony, and experts.

Paying for the experts

Based on the charge, the client is usually responsible for paying for an expert when they've hired private counsel. However, in the public defender's office, there is funding for paying experts.

These experts can be very expensive and it's a cost you should include in your fee and your contract. If your case requires an expert, be sure to reach out to them ahead of time with a retention letter to determine their hourly rate and create an agreement.

Additionally, some indigent clients may qualify for federal funding of an expert as part of the Criminal Justice Act. Defense would need to file a motion to the judge who would make the decision to grant or deny the request. This is typically done by Criminal Justice Act ("CJA") or "panel" attorneys, who take on appointed conflict cases in federal court.

Questioning government expert

Whenever you're presented with a government's expert, you're going to get their report and CV ahead of time. However, you still want to file a motion to voir dire that witness and make some sort of argument to the court that they shouldn't be able to testify.

The trial judge will then allow you the opportunity to cross-examine them on their credentials and you would be able to make your argument.

In this case, Molly felt that there was an issue in terms of bias because the government's witness worked at the location where the alleged incident occurred.

Pro-Tip: If you don't think your client can afford the significant expense of hiring an expert, you should consider referring them to the public defender. The federal defenders are well-funded and use experts in any case that needs them. A client who needs a lot of expert testimony may be better off being represented by an office who can handle these extraneous costs.

Pro-Tip: Always litigate the experts. The other side is going to do the same.

Pro-Tip: Anything that you want to challenge, put it in writing and preserve it.

In this sexual assault case, both sides essentially conceded that a butt was touched. However, the question was whether or not the defendant had the requisite intent — was he involuntarily intoxicated or was this a knowing and intentional action?

Taking the stand

Testifying on the government's side was the victim, who was a nurse, an intern, and a medical resident at the VA. Molly also subpoenaed the janitor who the client verbally high-fived her client after the incident.

The defendant also took the stand, despite Molly advising against it.

Surprise during trial

Unfortunately, the defense's expert on the drug the client was administered also had a history of touching butts. The prosecution found an unsubstantiated complaint that was in his employment file from many years ago.

After this information was presented, Molly objected and moved for a mistrial. However, it wasn't granted and since there was no jury, the judge said he was just going to "forget it."

The Sentencing

After a two-day trial, the judge took a recess and decided on his ruling.

Usually, in federal court, when you have your verdict you don't move into sentencing because you have to do the preparation of the PSR, or the pre-sentencing report.

In this case, they waived preparation so they could move into sentencing quickly after the guilty verdict.

Both parties agreed on the guidelines were zero to six months and they both spoke at the sentencing hearing where they put a lot on the record about why they were requesting particular sentencing.

In this case, the prosecution asked for jail time while the defense asked for probation.

The judge has to make his findings as the the guidelines and as to 18 USC 3553 A.

During the sentencing hearing, they went through the guidelines, 3553 A factors, why they were asking for the sentence they were asking for, and then the judge made a bunch of findings on the record and sentenced the client to probation.

Pro-Tip: A common practice in federal court, especially when dealing with more serious cases or felonies, is to not waive the preparation and to have the sentencing postponed.

Pro-Tip: It's good to have an open discussion with the prosecutor to find out their sentencing recommendation beforehand.

Pro-Tip: Probation for misdemeanor cases is pretty-heavily supervised. If there is a violation, you're going to be back in court and the prosecution is probably going to request jail time if the violation is considered serious enough.

It's extremely important to come to court prepared both with knowledge and confidence.

Molly's Tips for preparing:

Molly's Courtroom Checklist

Any offenses that occur on federal property or have a federal hook. It's pretty common to see a high volume of traffic-based offenses such as DUIs and reckless driving, cases from the VA, obstruction of mail, drug cases, guns at the airport, and cases from the federal forests such as fishing, hunting, and gaming violations.

In federal practice, courts distinguish between different types of misdemeanors, dividing by class A, B, or C. It's important to know the class you're dealing with as there will be different penalties and procedures.

Class A misdemeanors are the most serious and are punishable for up to a year in jail and include a right to a jury trial. Meanwhile, the penalties for Class B and Class C are far less, with up to six months in jail. However, they do not include a right to a jury trial.

Class C misdemeanors are often referred to as "petty offenses."

Classification of Offenses in Federal Court

These classes are used to identify the possible sentencing exposure for the crime as designated in 18 U.S.C 3559.

You can also find details on the classification and sentencing of petty offenses and misdemeanors in the Federal Rules of Criminal Procedure, Rule #58.

If your client is charged with a Class A misdemeanor, the United States Sentencing Guidelines (USSG) are going to apply. But if they are charged with a Class B or Class C, they're not. So, if you're dealing with a Class A, you have to make sure you have a good working knowledge of the guidelines and you prepare your client for everything that comes with that process.

Researching the Elements

When you get these cases, you want to start by researching the code section, how it's charged, and the elements that have to be met. You can use this to find any avenues you might be able to litigate.

So long as it's a personal use amount, even if it's heroin or ketamine, you're going to be handling it through a citation.

Special Probation + Expungement

It's important to prepare your client for any financial charges they may be faced with before going to court. The range of fees will depend on the charges and the case. But you can start by examining the statute and preparing your client for the maximum fine possible.

Typically, a CVB client will be given 60 days to pay their fines and fees. The judge will make this clear as they pronounce their order when you resolve the case. If the fines and fees are paid within that time, the case is formally closed.

Negotiate the Fine

The prosecutor can reduce the fines significantly depending on how they're feeling about the client and the facts of the case. So don't be afraid to go back and forth when it comes to fines, because there is a lot of room for a prosecutor to have discretion and offer you something different.

Probation for a Fine

If the fine is too much for your client to pay, they can go on probation until it is paid pack. This is different than an actual probation sentence and will be closed out as soon as the total fine is paid.

Expectations

Setting expectations is so important in this work. Clients can handle bad news, they just cannot be surprised by bad news. And so, that's our job. Having that information when you're talking to them on the front end is so valuable.

Probation for a federal misdemeanor is taken very seriously in federal court. So it's important to prepare your client and make sure they understand the terms and conditions of their probation and the consequences if they don't follow the designated rules.

The maximum time for probation on a misdemeanor is set at one year.

Meeting with the Probation Officer

You can expect your client to meet with the United States probation officer the same day they enter into this resolution and their supervision begins. Usually, their office is located in the federal courthouse. You should accompany your client to this meeting if at all possible.

Once your client meets with a US probation officer, they will likely be required to take a drug test immediately. Then, they will mostly likely initiate routine drug screens.

Testing Positive for Drugs While on Probation

If your client tests positive on a drug screen while on federal probation, they will probably need to hire a lawyer to represent them on a probation revocation.

You can expect a very serious hearing back in front of the same judge in federal court, where you can make whatever arguments you'd like to make for your client.

Depending on the facts of the violation — especially if it is a "special probation" drug case — your client may lose their opportunity for a civil penalty and face a criminal conviction.

Usually, they will not be arrested for testing positive, but the probation officer will file a petition for revocation. A hearing will be scheduled and if they judge finds your client has violated the terms and conditions of their probation, they may be ordered to go into custody right after the hearing. It is important to prepare them for this, if it is a possibility.

U.S. Sentencing Guidelines

According to the U.S. Sentencing Guidelines, there is mandatory revocation for certain drug positives in felony cases. But in this world of misdemeanor cases, revocations are not nearly that serious. For the most part, the people are pretty amenable to work with you and try to put your client in a good position despite the violation, assuming the violation is minor and your client has done relatively well on supervision.

Reaching Out to the Probation Officer

It's a good strategy to reach out to the probation officer and discuss what they're going to recommend if your client has violated probation. They are not going to hesitate to talk to defense counsel and may have some empathy since they know your client.

Reaching Out to the Prosecutor

The court wants to know the position of all parties when it comes to probation violations. When you're filing something, or making some sort of announcement on a probation violation, always indicate the position of the probation officer and the position of the prosecutor. A lot of times the culture is that the prosecutor defers to probation, but sometimes they do take different positions.

You want to make sure that you loop in both the prosecutor on the case and the supervising officer and articulate their stance to the judge.

Sentencing for Class A Misdemeanors

Sentencing is one of the most involved and important parts of criminal procedure. It's incredibly important when dealing with Class A misdemeanors to know the U.S. Sentencing Guidelines and understand how they interplay with the law.

It's extremely important to come to court prepared both with knowledge and confidence.

Molly's Tips for preparing:

Molly's Courtroom Checklist

Most attorneys that focus on federal cases divide their fees by pre-trial and trial.

People tend to accept the fact that the rate for hiring an attorney in federal court is insanely high, it's the going rate, and that's the market.

Molly wouldn't handle a misdemeanor case short of trial for less than $5,000.

Typically she charges a flat rate, but she shares that when you break it down to an hourly rate it's just a lot of time and work.

One of the things that make this such a great opportunity for lawyers is that there just isn't a lot of competition. The amount of lawyers willing to take on federal misdemeanors is few and far between because it can be a very intimidating world and not all lawyers are comfortable.

The reason many lawyers aren't comfortable is that they are not prepared to ask for the fees that you will need to support the amount of effort these cases can take.

Having a working knowledge of how to evaluate how much work a case will take will coom with experience, but there are certain general things you can look for.

For instance, if you're dealing with a low-level collateral forfeiture case or something you can resolve at the initial appearance, it's common to charge a couple of thousand dollars.

If you're dealing with a Class A misdemeanor, a trial, or a case that's going to involve the pre-sentencing report, it's common to charge anywhere from $5,000 to $10,000.

Structuring Your Fees

You can also structure your fees by separating the pre-trial fee from the trial fee. If your client is not sure they are going to trial, you can charge a pre-trial fee that ranges from $2,000 to $5,000.

But it's important to communicate that if you go to trial there will be an additional fee that commonly ranges from $2,000 to $5,000.

Explain to your client that this does not include expert costs or fines/fees if imposed.

What are they paying for?

It's important to keep in mind all of the elements that are calculated into your fees. Not only is it difficult to find a lawyer who is skilled and knowledgeable in federal court, but it involves a lot of both mental and emotional work.

Practicing at the federal level is highly academic and will require a lot of research to properly prepare for each case. Additionally, a good federal defense attorney will provide emotional support for their clients through this very intimidating process.

So, essentially, they are paying for someone who will not only answer all of their legal questions but also someone who will ease their fears and anxiety caused by the process.

Federal court can be very intimidating for your client so it's important to help them through the process by empowering them with knowledge and expectations. Inform them about the procedure and the code section that they're charged under. You also want to prepare them for the level of decorum and professionalism that is the culture in federal court.

It's also important to let them know that you're on their side and you're going to do everything possible to put them in the best position possible. Essentially, part of your job is to give them confidence and help them manage any fear or intimidation that they may be experiencing.

Keep in mind that you will probably have to reassure them throughout the procedure due to the level of intensity and formality.

Onboarding

The most common initial question potential clients are going to ask is, "do you handle these types of cases?" Typically, it's very difficult to find lawyers who handle federal misdemeanors, which gives you an advantage from the first encounter.

For some simple offenses, clients are usually fine with hiring you from that initial phone call. However, those dealing with more serious misdemeanors usually want to meet in person before moving forward.

What happens if your client is late to court?

It is incredibly important for you to get your client to the courtroom on time. However, if they are late and have a decent excuse, everyone is usually amenable to getting a reset.

Any lawyer who wants to put the time, energy, and focus into federal cases can do it. But you have to be willing to put in the work and do the heavy legal research.

Molly's Process

When I get a case, the first step I take is to do a deep dive into the case, the statute(s) charged, and the cases that litigate the statutes.

After researching my circuit (the 11th), I like to look outside my circuit. While your circuit is binding in terms of precedent, there are certain statutes that are litigated nationwide under the standardized U.S. code and you might find something interesting in another circuit that you can include in your briefing.

I also like to reach out to the federal public defender's office. They are a very important resource because they do this type of work day in and day out. Their feedback and insight can be invaluable to your case. They usually have someone available to private practitioners to answer questions, provide sample filings, or even walk you through the current status of a law or particular legal issue.

Molly's Top 3 Tips for Preparing:

Favorite Issues - What to Look For

Two important things to flag in your misdemeanor case:

It's extremely important to come to court prepared both with knowledge and confidence.

Molly's Tips for preparing:

Molly's Courtroom Checklist

While it's vital to learn the basics before walking into a federal courtroom, the misdemeanor level is one of the best places to start gaining confidence in the world of federal practice.

Molly shares how trying misdemeanors is a good sandbox for people to get comfortable and get a sense of what it might be like if they wanted to invest further and start handling felony cases because it can familiarize them with the culture and how things matriculate through federal courts. But it's low stakes and the law is not as dense. So it doesn't require the full-fledged effort and knowledge base that you need to handle a felony.

Federal felony cases can be very fascinating. They are incredibly high-stakes cases that help you to become a very skilled lawyer. It's never rote or routine, so you are constantly learning.

But it's not a good idea to take on a federal felony case by yourself if you've never practiced in federal courtroom before.

Taking Steps Toward Taking Federal Felony Cases

The first thing you can do to move into federal felony practice is to learn about the Criminal Justice Act Panel, or the CJA panel in your district. These are the lawyers that are taking appointed conflict cases that cannot be handled by the federal defender in that district.

You can find out who is on the panel and reach out to them to volunteer your time.

You can also reach out to someone who has retained federal work to see if you can volunteer your time to work with them.

Once you've had some experience volunteering or sitting second chair in the felony court, then you can apply for the CJA panel in your district.

Working in the Federal Public Defender's office is an incredible job — and it's very competitive to get in. Applying for a position is not as simple as applying for other legal jobs. Rather, it's more akin to applying to law school.

Typically, they want someone who is profoundly connected to the work.

During her application process, Molly submitted academic writing samples and went through a series of interviews.

Pro-Tip: Talk to others who have gone through the process before applying.